REPORTABLE

IN THE SUPREME COURT OF INDIA

ORIGINAL CRIMINAL JURISDICTION

WRIT PETITION (CRL.) NO.77 OF 2008

Deepak Bajaj .. Appellant (s)

-versus-

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

J U D G M E N T

Markandey Katju, J.

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

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India has been filed to challenge the detention order dated

22.05.2008 passed against the petitioner, Deepak Gopaldas Bajaj,

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

Foreign Exchange and Prevention of Smuggling Activities Act,

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

petition.

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

petitioner and Shri Shekhar Nafade and Shri Ravindra Keshavrao

Adsure, learned counsels for the respondents and perused the

record.

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

respondents that this petition should not be entertained because the

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

petitioner has surrendered or was arrested. Learned counsel for the

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

Maharashtra vs. Bhaurao Punjabrao Gawande AIR 2008 SC

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

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

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

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

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

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

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

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

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

the pre execution stage needs to be further explained.

5.Since the aforesaid decisions have basically followed the

decision of this Court in Additional Secretary to the

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

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

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

Gadia’s case (supra) this Court observed :

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“30. As regards his last contention, viz., that to deny a

right to the proposed detenu to challenge the order of

detention and the grounds on which it is made before he

is taken in custody is to deny him the remedy of judicial

review of the impugned order which right is a part of the

basic structure of the Constitution, we find that this

argument is also not well merited based as it is on

absolute assumptions. Firstly, as pointed out by the

authorities discussed above, there is a difference between

the existence of power and its exercise. Neither the

Constitution including the provisions of Article 22

thereof nor the Act in question places any restriction on

the powers of the High Court and this Court to review

judicially the order of detention. The powers under

Articles 226 and 32 are wide, and are untrammeled by

any external restrictions, and can reach any executive

order resulting in civil or criminal consequences.

However, the courts have over the years evolved certain

self-restraints for exercising these powers. They have

done so in the interests of the administration of justice

and for better and more efficient and informed exercise

of the said powers. These self-imposed restraints are not

confined to the review of the orders passed under

detention law only. They extend to the orders passed and

decisions made under all laws. It is in pursuance of this

self-evolved judicial policy and in conformity with the

self-imposed internal restrictions that the courts insist

that the aggrieved person first allow the due operation

and implementation of the concerned law and exhaust

the remedies provided by it before approaching the High

Court and this Court to invoke their discretionary

extraordinary and equitable jurisdiction under Articles

226 and 32 respectively. That jurisdiction by its very

nature is to be used sparingly and in circumstances

where no other efficacious remedy is available. We have

while discussing the relevant authorities earlier dealt in

detail with the circumstances under which these

extraordinary powers are used and are declined to be

used by the courts. To accept Shri Jain’s present

contention would mean that the courts should disregard

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all these time-honoured and well-tested judicial self-

restraints and norms and exercise their said powers, in

every case before the detention order is executed.

Secondly, as has been rightly pointed out by Shri Sibal

for the appellants, as far as detention orders are

concerned if in every case a detenu is permitted to

challenge and seek the stay of the operation of the order

before it is executed, the very purpose of the order and of

the law under which it is made will be frustrated since

such orders are in operation only for a limited period.

Thirdly, and this is more important, it is not correct to

say that the courts have no power to entertain grievances

against any detention order prior to its execution. The

courts have the necessary power and they have used it in

proper cases as has been pointed out above, although

such cases have been few and the grounds on which the

courts have interfered with them at the pre-execution

stage are necessarily very limited in scope and number,

viz., where the courts are prima facie satisfied (i) that the

impugned order is not passed under the Act under which

it is purported to have been passed, (ii) that it is sought

to be executed against a wrong person, (iii) that it is

passed for a wrong purpose, (iv) that it is passed on

vague, extraneous and irrelevant grounds or (v) that the

authority which passed it had no authority to do so. The

refusal by the courts to use their extraordinary powers of

judicial review to interfere with the detention orders

prior to their execution on any other ground does not

amount to the abandonment of the said power or to their

denial to the proposed detenu, but prevents their abuse

and the perversion of the law in question.”

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

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

the five grounds mentioned therein on which the Court can set

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aside the detention order at the pre execution stage are only

illustrative not exhaustive.

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

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

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

Quinn vs. Leathem, 1901 AC 495 :

“Now before discussing the case of Allen Vs. Flood

(1898) AC 1 and what was decided therein, there are two

observations of a general character which I wish to

make, and one is to repeat what I have very often said

before, that every judgment must be read as applicable to

the particular facts proved or assumed to be proved,

since the generality of the expressions which may be

found there are not intended to be expositions of the

whole law, but are governed and qualified by the

particular facts of the case in which such expressions are

to be found. The other is that a case is only an authority

for what it actually decides. I entirely deny that it can be

quoted for a proposition that may seem to follow

logically from it. Such a mode of reasoning assumes that

the law is necessarily a logical Code, whereas every

lawyer must acknowledge that the law is not always

logical at all.”

We entirely agree with the above observations.

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

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

“The ratio of any decision must be understood in the

background of the facts of that case. It has been said a

long time ago that a case is only an authority for what it

actually decides and not what logically follows from it”.

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

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

“It is well settled that a little difference in facts or

additional facts may make a lot of difference in the

precedential value of a decision”.

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

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

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

same judgment this Court also observed :

“Courts should not place reliance on decisions without

discussing as to how the factual situation fits in with the

fact situation of the decision on which reliance is placed.

Observations of Courts are neither to be read as Euclid’s

theorems nor as provisions of the statute and that too

taken out of the context. These observations must be

read in the context in which they appear to have been

stated. Judgments of Courts are not to be construed as

statutes. To interpret words, phrases and provisions of a

statute, it may become necessary for judges to embark

into lengthy discussions but the discussion is meant to

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explain and not to define. Judges interpret statutes, they

do not interpret judgments. They interpret words of

statutes; their words are not to be interpreted as statutes”.

(emphasis supplied)

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

737 at page 761), Lord Mac Dermot observed :

“The matter cannot, of course, be settled merely by

treating the ipsissima verba of Willes, J. as though they

were part of an Act of Parliament and applying the rules

of interpretation appropriate thereto. This is not to

detract from the great weight to be given to the language

actually used by that most distinguished judge”.

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

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

was a statute definition; it will require qualification in new

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

“One must not, of course, construe even a reserved

judgment of Russell L.J. as if it were an Act of

Parliament”.

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

WLR 537) Lord Morris said :

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“There is always peril in treating the words of a

speech or judgment as though they are words in a

legislative enactment, and it is to be remembered that

judicial utterances are made in the setting of the facts of

a particular case.

Circumstantial flexibility, one additional or

different fact may make a world of difference between

conclusions in two cases. Disposal of cases by blindly

placing reliance on a decision is not proper. The

following words of Lord Denning in the matter of

applying precedents have become locus classicus :

Each case depends on its own facts and a close

similarity between one case and another is not enough

because even a single significant detail may alter the

entire aspect. In deciding such cases, one should avoid

the temptation to decide cases (as said by Cardozo, J.) by

matching the colour of another. To decide, therefore, on

which side of the line a case falls, the broad resemblance

to another case is not at all decisive.

Precedent should be followed only so far as it

marks the path of justice, but you must cut the dead

wood and trim off the side branches else you will find

yourself lost in thickets and branches. My plea is to

keep the path of justice clear of obstructions which could

impede it.”

(emphasis supplied)

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

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

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

Gowramma & Ors. AIR 2008 SC 863.

9

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

Maharashtra submitted that the five conditions mentioned in Smt.

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

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

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

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

down the principle that entertaining a petition against a preventive

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

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

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

five grounds for entertaining such a petition at a pre execution

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

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

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

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

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

10

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

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

and futile exercise.

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

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

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

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

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

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

transgressed.

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

observed :

“A man’s liberty of movement is regarded so highly by

the law of England that it is not to be hindered or

prevented except on the surest ground”

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

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

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(2) SC 639 (vide para 90).

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

released, his reputation may be irreparably tarnished. As observed

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

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

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

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

decision).

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

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

(vide para 24) :

“………..The existence of the power to arrest is one

thing. The justification for the exercise of it is quite

another. The Police Officer must be able to justify the

arrest apart from his power to do so. Arrest and

detention in police lock-up of a person can cause

incalculable harm to the reputation and self-esteem of a

person.”

(emphasis supplied)

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23.In the Geeta Lord Krishna said to Arjun :

“lEÒkforL; pkdhfrZeZj.kknfrfjP;rs”

(Geeta : Chapter 2 Shloka 34)

which means -

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

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

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

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

reason why the Court should stay its hands and compel the

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

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

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

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

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

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

13

mentioned therein for quashing the detention order at the pre

execution stage are exhaustive.

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

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

“ ….the power of preventive detention is a frightful and

awesome power with drastic consequences affecting

personal liberty, which is the most cherished and prized

possession of man in a civilized society. It is a power to

be exercised with the greatest care and caution and the

courts have to be ever vigilant to see that this power is

not abused or misused.”

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

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

“No freedom is higher than personal freedom and no

duty higher than to maintain it unimpaired”

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

relevant materials before the Detaining Authority vitiates the

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

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

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

14

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

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

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

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

case (supra).

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

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

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

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

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

Constitution permit the High Court and the Supreme Court to not

only issue the writs which were traditionally issued by British

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

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

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

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

also issue orders and directions apart from issuing writs. The

15

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

High Court are not subject to the traditional restrictions on the

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

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

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

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

Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami

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

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

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

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

the nature of mandamus for restraining the respondents from

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

writ of certiorari and/or mandamus can issue.

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

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

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

16

against illegal detention and its purpose is to safeguard the liberty

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

transgressed by anyone. The imperative necessity to protect those

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

experience. Our founding fathers have lived through bitter years

of the freedom struggle and seen an alien government trample upon

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

introduced Article 21 in the Constitution and provided for the writs

of habeas corpus, etc.

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

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

LJ observed:

“The law in the country has been very

zealous of any infringement of personal liberty.

This case is not to be exercised less vigilantly,

because the subject whose liberty is in question

may not be particularly meritorious. It is indeed

one test of belief in principles if you apply them

to cases with which you have no sympathy at all.

You really believe in freedom of speech if you are

willing to allow it to men whose opinion seem to

17

you wrong and even dangerous; and the subject is

entitled only to be deprived of his liberty by due

process of law, although that due process if taken

will probably send him to prison. A man

undoubtedly guilty of murder must yet be released

if due forms of law have not been followed in his

conviction. It is quite possible, even probable, that

the subject in this case is guilty of high treason; he

is still entitled only to be deprived of his liberty

by due process of law.

(emphasis supplied)

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

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

“Whether the commitment be by the King or

others, this Court is a place where the King doth

sit in person, and we have power to examine it,

and if it appears that any man hath injury or

wrong by his imprisonment, we have power to

deliver and discharge him, if otherwise, he is to be

remanded by us to prison.”

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

p.769), it is stated:

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“In any matter involving the liberty of the

subject the action of the Crown or its ministers or

officials is subject to the supervision and control

of the judges on habeas corpus. The judges owe a

duty to safeguard the liberty of the subject not

only to the subjects of the Crown, but also to all

persons within the realm who are under the

protection of the Crown and entitled to resort to

the courts to secure any rights which they may

have, and this whether they are alien friends or

alien enemies. It is this fact which makes the

prerogative writ of the highest constitutional

importance, it being a remedy available to the

lowliest subject against the most powerful. The

writ has frequently been used to test the validity

of acts of the executive and, in particular, to test

the legality of detention under emergency

legislation. No peer or lord of Parliament has

privilege of peerage or Parliament against being

compelled to render obedience to a writ of habeas

corpus directed to him.”

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

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

this petition shows that, the basic allegations against the petitioner

are that he imported 29 consignments of goods duty free which

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

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

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

19

replenishment certificate (DFR) and misused the same. Various

other allegations have also been made in the grounds of detention

which runs into as many as 76 pages.

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

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

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

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

was not placed before the Detaining Authority when he passed the

detention order.

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

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

documents by Sponsoring Authority leading to consequent non-

consideration thereof by the Detaining Authority’.

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

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

20

respondent that it is not necessary for the Detaining Authority to

consider or refer to the materials which were irrelevant to the

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

with Shri Soli Sorabjee that some of the materials were relevant

and should have been placed before the Detaining Authority and

considered by him, but they were neither placed before the

Detaining Authority nor were they considered.

37.The most important of these documents which were not

placed before the Detaining Authority were the retractions given

by Kuresh Rajkotwala to the DRI dated 4.12.2006, Kuresh

Rajootwala’s affidavit filed before the learned Addl. Chief

Metropolitan Magistrate, Esplanade, Mumbai, Bharat Chavhan’s

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

dated 19.1.2008, Sharad Bhoite’s retraction dated 24.4.2007 before

the Addl. Chief Metropolitan Magistrate, Esplanade Mumbai and

its affidavit filed before the same authority etc.

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38.Shri Nafade, learned counsel submitted that these retractions

were made before the DRI and the Additional Chief Metropolitan

Magistrate, and not before the Sponsoring Authority who was the

Additional Director of Revenue Intelligence. Shri Nafade

submitted that the Sponsoring Authority was not aware of these

retractions and hence he could not have placed them before the

Detaining Authority. We find no merit in this submission.

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

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

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

of the DRI to have communicated these retractions of the alleged

witnesses to the Sponsoring Authority, as well as the Detaining

Authority. There is no dispute that these retractions were indeed

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

These confessions were taken into consideration by the Detaining

Authority when he passed the detention order. Had the retractions

of the persons who made these confessions also been placed before

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the Detaining Authority it is possible that the Detaining Authority

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

opinion, the retractions of the confessions should certainly have

been placed before the Detaining Authority, and failure to place

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

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

is considered by the Detaining Authority while passing the

detention order the retraction of the confession must also be placed

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

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

SCC 222 this Court observed (vide para 7) :

“Further, in passing the detention order the detaining

authority obviously based its decision on the detenu’s

confessional statements of December 13 and 14, 1977 and,

therefore, it was obligatory upon the Customs Officers to

report the retraction of those statements by the detenu on

December 22, 1977 to the detaining authority, for, it

cannot be disputed that the fact of retraction would have

its own impact one way or the other on the detaining

authority before making up its mind whether or not to

issue the impugned order of detention. Questions whether

the confessional statements recorded on December 13 and

14, 1977 were voluntary statements or were statements

which were obtained from the detenu under duress or

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whether the subsequent retraction of those statements by

the detenu on December 22, 1977 was in the nature of an

after-thought, were primarily for the detaining authority to

consider before deciding to issue the impugned detention

order but since admittedly the aforesaid vital facts which

would have influenced the mind of the detaining authority

one way or the other were neither placed before nor

considered by the detaining authority it must be held that

there was non-application of mind to the most material and

vital facts vitiating the requisite satisfaction of the

detaining authority thereby rendering the impugned

detention order invalid and illegal”.

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

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

retraction of the statements to the Detaining Authority. Hence,

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

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

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

authorities before whom the retractions were made to have

forwarded them to the Detaining Authority and the Sponsoring

Authority. We entirely agree with the above view.

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

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SCC 339 this Court observed that where the relevant documents

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

detention order itself would become vitiated. The same view was

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

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

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

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

the detaining authority vitiated the detention order. The same view

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

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

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

State of Rajasthan AIR 1986 SC 1072, etc.

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

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

authority is not required to collect all materials about any court

proceedings etc from different Ministries or Departments for the

25

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

non-consideration of a relevant material will certainly invalidate

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

and reiterate it.

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

SCC 148 this Court observed that if the Detaining Authority has

relied on a confessional statement then the retraction of that

confession should also have been placed before the Detaining

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

so would invalidate the detention order.

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

materials referred to in paragraph 4 of the petition before the

Detaining Authority would certainly vitiate the impugned detention

order.

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

submitted that the petitioner had stopped his alleged illegal

26

activities in 2006 and hence the detention of the petitioner now

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

Maqsood Yusuf Merchant vs. Union of India and another

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

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

accused who was said to have indulged in unlawful activities were

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

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

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

same should not be given effect to any further.

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

Alpesh Navinchandra Shah vs. State of Maharashtra and

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

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

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

petitioner has not done any business after November 2006 when

27

the alleged last consignment was cleared by the petitioner. This

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

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

live link between the alleged prejudicial activities and the purpose

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

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

1990 SC 225 State of Maharashtra vs. Bhaurao Punjabrao

Gawande AIR 2008 SC 1705 etc.

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

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

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

relevant material was not placed before the Detaining Authority,

and this vitiates the detention order.

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

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

allowed. The impugned detention order dated 22.5.2008 stands

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quashed. No costs.

………………………..J.

(Altamas Kabir)

………………………..J.

(Markandey Katju)

New Delhi;

November 12, 2008

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