Page 1 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL) NO.137 OF 2011

SUBHASH POPATLAL DAVE … PETITIONER

VS.

UNION OF INDIA & ANR. … RESPONDENTS

WITH

W.P. (CRL) NOS.35, 138, 220 & 249 OF 2011

AND W.P. (CRL) NO.14 OF 2012

WITH

Crl.A. NO.932 OF 2013 (@ SLP (CRL) NO.1909 OF 2011)

Crl.A. NO.931 OF 2013 (@ SLP (CRL) NO.1938 OF 2011)

Crl.A. NO.930 OF 2013 (@ SLP (CRL) NO.2442 OF 2012)

AND

Crl.A. NOS. 961-962 OF 2013

@ SLP(CRL)NOS.2091-2092 OF 2012

WITH

TRANSFERRED CASE (CRL.) NOS.2-3 OF 2013

@ TRANSFER PETITION (CRL.) NOS.38-39/2013

Page 2 2

J U D G M E N T

ALTAMAS KABIR, CJI.

1.Leave granted in the Special Leave Petitions.

Transfer Petition (Crl.) Nos.38-39 are allowed.

2.The common thread which runs through these

matters being heard together is the challenge

thrown in each matter to detention orders passed

either against the Petitioners themselves or the

persons represented by them. The common question

of law involved in these Appeals, Writ Petitions

and Transfer Petitions is whether a detention order

passed under the provisions of the Conservation of

Foreign Exchange and Prevention of Smuggling

Activities Act, 1974, hereinafter referred to as

"the COFEPOSA Act, 1974", could be challenged at

the pre-execution stage only on any of the five

exceptions carved out by this Court in Addl.

Page 3 3

Secretary, Govt. of India vs. Alka Subhash Gadia

[(1992) Supp. (1) SCC 496], or whether such

challenge could be maintained on other grounds as

well. The matter had come up for hearing on the

said question on several days when we had occasion

to consider the decisions referred to by the

learned Additional Solicitor General, Mr. P.P.

Malhotra in Sayed Taher Bawamiya Vs. Joint

Secretary, Government of India [(2000) 8 SCC 630]

and in the case of Union of India Vs. Atam Prakash

& Anr. [2009) 1 SCC 585], wherein it had been held

that the grounds of challenge to a detention order

at the pre-execution stage could only be confined

to the five exceptions set out in Alka Subhash

Gadia’s case (supra). After having considered all

the said decisions and the submissions made on

behalf of the respective parties and keeping in

mind the fact that the most precious right of a

citizen is his right to freedom, we were convinced

Page 4 4

that the right of a detenue to challenge a

prevention detention order passed against him at

the pre-execution stage on grounds other than those

set out in paragraph 30 of the judgment in Alka

Subhash Gadia' s case (supra) required further

examination. We had accordingly directed these

matters to be listed for final hearing on all the

grounds of challenge directed against the detention

orders.

3.Appearing for the Appellants and the Writ

Petitioners, Mr. Mukul Rohatgi, learned Senior

Advocate, submitted that the question as to whether

the five exceptions mentioned in Alka Subhash

Gadia's case (supra) were only illustrative and not

exhaustive had already been considered in the

common judgment dated 10th July, 2012, wherein it

was also held that the law is not static, but

dynamic. Mr. Rohatgi reiterated his earlier

submission that if a citizen's right to freedom is

Page 5 5

to be interfered with in the public interest, such

powers would have to be exercised with extra

caution and not simply as an alternative to the

ordinary laws of the land.

4.Mr. Rohatgi submitted that if it is to be

accepted that challenge to a detention order could

be made at the pre-execution stage only on the five

exceptions mentioned in Alka Subhash Gadia 's case,

it would result in restrictions being imposed on

the powers vested in the Supreme Court under

Article 32 and in the High Courts under Article 226

of the Constitution. Mr. Rohatgi submitted that

with the passage of time since the decision

rendered in Alka Subhash Gadia 's case in 1992, new

grounds of challenge, such as absence of live link

and intervention of Settlement Proceedings under

the Customs Act, 1962, have been canvassed which

could not have been contemplated in Alka Subhash

Gadia's case and cannot be ignored in the facts of

Page 6 6

cases now being brought before the Courts. Mr.

Rohatgi submitted that a detenue must, therefore,

be held to have the right to challenge the

detention order passed against him, at the pre-

execution stage, on different grounds in addition

to the five exceptions carved out in Alka Subhash

Gadia's case, but each matter would have to be

considered and decided on its own set of facts.

5.In all these cases, the common refrain is that

the object sought to be achieved by passing the

detention orders, were no longer relevant and had

become otiose, having regard to the fact that the

object of a detention order is not to punish a

citizen for a crime with which he had not been

charged, but to prevent him from committing such

crime in the future. Mr. Rohatgi submitted that in

these cases the said principles have been violated

and had been used by the concerned authorities as a

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convenient alternative to the ordinary laws of the

land.

6.In this background, the matter which was taken

up first and treated as the lead matter, is Writ

Petition (Crl.) No. 137 of 2011, filed by Subhash

Popatlal Dave, questioning the detention order

issued by the Joint Secretary, Government of India,

on 18.08.1997, under Section 3(1) of the COFEPOSA

Act, 1974.

7.Mr. Rohatgi submitted that this was a classic

example of the sheer misuse of the powers vested in

the authorities to issue orders of detention as an

alternative to the ordinary laws of the land. Mr.

Rohatgi submitted that, unless and until, it could

be shown that after the detention order was passed

the detenue had indulged in activities which were

similar to those on account whereof the detention

order had been passed, the very reason for the

Page 8 8

detention order stood eroded. The detention order,

which was to be valid for a period of one year,

outlived its purpose after the said period, since

there is nothing on record to show that the

proposed detenue had indulged in any activities of

a similar nature after the detention order was

passed. Mr. Rohatgi urged that there was no

existing live link between the detention order and

the intention of the authorities to detain the

detenue by virtue of such detention order. Apart

from the above, Mr. Rohatgi submitted that a

prosecution has also been commenced against the

proposed detenue before the Court of Additional

Chief Metropolitan Magistrate, Esplanade, Mumbai,

for offences alleged to have been committed under

Sections 8(1), (2), (4), 9(1)(b), 9(1)(d), 14,

27(1), 49(3),(4), 56(1) of the Foreign Exchange

Regulation Act, 1973, and the matter is now pending

before the FERA Appellate Tribunal, New Delhi. Mr.

Page 9 9

Rohatgi submitted that, as has been held in the

recent judgment of this Court in Rekha Vs. State of

Tamil Nadu [(2011) 5 SCC 244], when adequate

measures and remedies under the ordinary criminal

law had already been taken, there could be no

necessity for issuance of detention orders by

resorting to preventive detention law, on which

count the impugned order of detention stands

vitiated. The Petitioner prayed that the impugned

detention order No. F.673/89/97-CUS.VIII dated

18.8.1997, issued by the Joint Secretary,

Government of India, under Section 3(1) of the

COFEPOSA Act, 1974, be declared void,

unconstitutional and illegal in the interest of

justice.

8.The next case is that of Nitish Prakashchand

Kothari [W.P.(Crl) No. 138 of 2011], who is himself

the proposed detenue under the detention order

dated 3.12.2009. The said order has been

Page 10 10

challenged on several grounds, including the ground

relating to the existence of a live link between

the preventive detention order and the

circumstances prevailing today. Mr. Rohatgi

submitted that in the present case more than three

and a half years have passed since the impugned

detention order was passed and there is nothing on

record to indicate that the proposed detenue had or

was likely to indulge in activities described in

the detention order.

Accordingly, the order of detention passed in

respect of the Petitioner is required to be

quashed.

9.In Suresh D. Hotwani's case [W.P.(Crl.) No. 35

of 2011], the proposed detenue is one Nitesh Ashok

Sadarangani, and the detention order was passed on

12.3.2001. The said detention order was challenged

by the Writ Petitioner before the Bombay High

Page 11 11

Court, being Criminal Writ Petition No. 1645 of

2010, which dismissed the same on 5.1.2011. S.L.P.

(Crl.) No. 2442 of 2012 was filed on 29.2.2012

against the said order of dismissal of the Writ

Petition filed before the Bombay High Court.

However, in the meantime, the Petitioner also moved

the present Writ Petition [W.P.(Crl.) No. 35 of

2011] challenging the same order of detention. Mr.

Rohatgi submitted that, in fact, the challenge in

the Special Leave Petition filed before this Court

is against the judgment and order of the Bombay

High Court dismissing the challenge to the

detention order. On the other hand, Writ Petition

[W.P.(Crl.) No. 35 of 2011] challenges the same

detention order directly in this Court. Mr.

Rohatgi submitted that the cause of action for the

two proceedings are different, although, they may

both arise out of the order of detention passed

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against the proposed detenue, Nitesh Ashok

Sadarangani.

10. Mr. Rohatgi urged that the grounds for

challenge of the detention order are the same as

those in Subhash Popatlal Dave 's case [W.P.(Crl.)

No. 137 of 2011] to the extent that after an

interval of more than 11 years the detention order

had become stale since there is no material to

indicate that the proposed detenue had indulged in

any activity during this period which may have

given some justification to the continuance of the

concerned detention order. Mr. Rohatgi submitted

that the long interval between the passing of the

detention order and the execution of the order has

diluted the detention order and defeated the very

purpose for which it was passed. Mr. Rohatgi also

drew an analogy with the case of one Shri Nikunj

Kirti Kanaria, whose detention order was revoked at

the pre-execution stage, since the same had become

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stale owing to passage of time. Mr. Rohatgi

submitted that in the present case the live link

stood snapped as there was no explanation for the

long delay between the date of the detention order

and the failure to execute the same. Referring to

the decision of this Court in Maqsood Yusuf

Merchant Vs. Union of India [(2008) 16 SCC 31],

learned counsel submitted that this Court had set

aside the detention order under the COFEPOSA Act,

1974, because of the long delay during which there

was nothing on record to indicate that the proposed

detenue had indulged in activities similar to those

indicated in the detention order. Mr. Rohatgi

submitted that on the ground of delay in serving

the detention order, the same had lost its very

purpose and was, therefore, liable to be quashed.

11.S.L.P. (Crl.) No. 1909 of 2011 has been filed

by Anil Kailash Jain against the judgment and order

dated 5.1.2011 passed by the Bombay High Court in

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Criminal Writ Petition No. 2675 of 2010, whereby

several Writ Petitions, including that filed by

Suresh D. Hotwani , were disposed of. In the

instant case, the detention order was passed on

13.12.2007 and the challenge thereto was taken up

for consideration by the Bombay High Court along

with several other matters, including the Writ

Petition filed by Suresh D. Hotwani (Criminal Writ

Petition No. 1645 of 2010) and Ajay Bajaj (Criminal

Writ Petition No. 103 of 2009). The same were

disposed of by the Bombay High Court by a common

judgment dated 5.1.2011. In fact, the same

arguments, as were advanced in Suresh D. Hotwani's

case, were advanced regarding the absence of a live

link between the impugned detention order and the

attempt to detain the Petitioner on the basis

thereof after an interval of six years. It was

submitted that the detention order was not

sustainable, since the very object of the detention

Page 15 15

order had become stale and, therefore, redundant in

the absence of any material on record to suggest

that the Petitioner had, since the passing of the

detention order, indulged in any activity, similar

to the one mentioned in the detention order, during

the intervening years.

12.S.L.P.(Crl.) No. 1938 of 2011 was filed against

the judgment and order dated 31.1.2011, passed by

the Bombay High Court in Criminal Writ Petition No.

3233 of 2010, challenging the validity of the

detention order No. PSA-1206/2/Spl-3(A) dated

21.8.2006, passed under Section 3(1) of COFEPOSA

Act, 1974. The grounds of challenge in the Writ

Petition are the same as those urged in the earlier

matters, to which reference has also been made by

the learned Judges of the Bombay High Court. One

of the questions of law, which had been raised, is

whether under the Right to Information Act, 2005,

the Petitioner was entitled to copies of the

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detention order before its execution, which

question was negated in the judgment and order

dated 10.7.2012.

13.S.L.P.(Crl.) Nos.2091-92 of 2012 is directed

against the judgment and order dated 24.2.2012,

passed by the Delhi High Court in Writ Petition

(Crl.) No. 1629 of 2011 and Criminal Misc.

Application No. 18497 of 2011 filed in the said

Writ Petition. In the Writ Petition before the

High Court, the Petitioners challenged a detention

order dated 7.10.2004, passed under Section 3(1) of

COFEPOSA Act, 1974. The High Court, while

considering the said Writ Petition and Criminal

Miscellaneous Application, took note of the fact

that the Petitioners had challenged the detention

order in a previous Writ Petition, being W.P.

(Crl.) No. 566 of 2005, which was dismissed by a

Division Bench of the Delhi High Court on 2.1.2007.

It was also noticed that after the dismissal of the

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Writ Petition, the judgment of the Division Bench

was challenged in S.L.P.(Crl.) No. 3132 of 2007,

which was also dismissed on 10.7.2007. It was also

noticed that the second Petitioner, namely, the

proposed detenue, Rajeev Verma, was residing in the

United States and was represented by his learned

Advocate, Mr. Nikhil Jain. On behalf of the Shri

Rajeev Verma, the detention order has now been

challenged in these Special Leave Petitions on

grounds which are similar to the grounds taken in

the earlier matters, namely, that seven years had

passed since the detention order had been issued

for a limited period of one year. The order was

also challenged on the ground that the High Court

had failed to appreciate the fact that an order of

preventive detention is not to punish the detenue

for having committed an offence but to prevent him

from doing so. It was submitted that the cause of

action for challenge of the detention order at this

Page 18 18

stage was on grounds which were totally different

from those taken in the Writ Petition before the

High Court. Reliance was placed on several

decisions of this Court in Maqsood Yusuf Merchant

(supra), Yusuf Razak Dhanani Vs. Union of India

[W.P.(Crl.) No. 132 of 2007] and Sanjeev Jain Vs.

Union of India [Crl. Appeal No. 1060 of 2010,

wherein the detention orders were quashed on

account of absence of any live link between the

detention order and the attempt now being made to

detain the proposed detenues on the basis of the

same order, without any fresh material to indicate

that after the passing of the detention order the

proposed detenues had indulged in acts, which were

similar to those indicated in the detention order.

14.Transfer Petition (Crl.) Nos. 38-39 of 2013

have been filed by one Vijay Ram Bilas Gupta ,

against whom a detention order, being No. PSA-

1211/CR-21(1)/SPL-3(A), was passed on 23.1.2012.

Page 19 19

Prior to the passing of the detention order, the

Petitioner had filed an application for settlement

of the case arising out of the Show Cause notice

dated 13.12.2011, which was allowed by the

Settlement Commission, Customs and Central Excise,

Additional Bench, Mumbai on 29.3.2012, and the

case was settled. While settling the case, the

Settlement Commission granted the Petitioner

immunity from prosecution under the Customs Act,

1962. The Writ Petition filed by the Petitioner

challenging the detention order, being W.P.(Crl.)

No. 48 of 2012, was disposed of by this Court on

4.4.2012, with leave to the Petitioner to approach

the High Court for appropriate relief, if any.

15.Pursuant to the leave granted by this Court, on

14.4.2012, the Petitioner filed Criminal Writ

Petition No. 1502 of 2012, before the Bombay High

Court, praying for quashing and setting aside the

impugned order of detention dated 23.1.2012, in

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view of the settlement of the case on payment of

the admitted duty liability. In view of the

settlement of the case, the Bombay High Court

passed an ad interim order directing the

Respondents authorities not to take coercive action

against the Petitioner, till the next date. On

13.6.2012, the Union of India filed Writ Petition

(Lodg) No. 1523 of 2012, before the Bombay High

Court, challenging the final order dated 29.3.2012,

passed by the Settlement Commission. The same is

still pending. During the pendency of the matter,

this Court, by its interim judgment dated

10.7.2012, held that the detention orders could be

challenged at the pre-execution stage even on

grounds other than the five exceptions indicated in

Alka Subhash Gadia 's case (supra). Accordingly,

the Petitioner prayed for transfer of the two

pending Writ Petitions, before the Bombay High

Court, one filed by the Petitioner and the other by

Page 21 21

the Union of India, to be heard along with the

other matters, since the same questions of law were

involved.

16. The main challenge in the Writ Petition by the

Petitioner before the Bombay High Court was that

instead of passing a detention order for preventive

purposes, the same has been issued for punitive

purposes, since the detention order issued on

23.1.2012, was in respect of evidence recorded

between October and November, 2010, in respect

whereof the Petitioner was arrested on 2.11.2010

and enlarged on bail on 14.12.2010. It was

submitted, as in other cases, that there is nothing

on record to indicate that anything has been done

by the Petitioner, after the detention order was

passed till date. The other relevant ground of

challenge is that when the Settlement Commission

under the Customs Act, 1962, had granted

conditional immunity under Sub-section (1) of

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Section 127H of the Customs Act, there could be no

further ground for either issuing or continuing

with the detention order, which arises out of the

facts in respect of which the Settlement Commission

had granted immunity to the Petitioner.

17.Writ Petition (Crl.) No. 14 of 2012, filed by

Mohan Lal Arora , is for quashing Detention Order

No. 673/18/2011-CUS.VIII dated 8.9.2011, on the

same grounds, as urged in the other matters

relating to delay in issuing the detention order on

stale grounds. It was also contended that the

Detaining Authority acted merely as a rubber stamp

of the Sponsoring Authority, without applying its

mind independently. It was further urged that, as

in other matters, the Sponsoring Authority took

recourse to an order of preventive detention,

without taking recourse to the ordinary laws of the

land available for prosecution of offences referred

to in the detention order.

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18.Writ Petition (Crl.) No. 249 of 2011 filed by

Manju R. Agarwal was in respect of her husband,

Rajesh Kumar Agarwal, against whom detention order

No. PSA-1210/CR-60/SPL-3(A) had been passed on

23.12.2010, in terms of Section 3(1) of COFEPOSA

Act, 1974. The facts of this case are no different

from the facts in Transfer Petition (Crl.) Nos. 38-

39 of 2013. As in the said Transfer Petitions, in

the instant case, on the same set of accusations,

the detenue was arrested on 2.3.2010 and was,

thereafter, released on bail by the Sessions Court

on 5.4.2010. Thereafter, the proposed detenue,

along with others, approached the Settlement

Commission for settlement of the disputes in

respect of the show cause notices issued to them in

the manner contemplated under Sections 127-A to

127-M of the Customs Act, 1962. By an order dated

17.10.2011, the Settlement Commission allowed the

applications to be proceeded with and while

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imposing penalty upon the proposed detenue under

Sections 112-A and 114-F of the Customs Act, 1962,

granted full immunity to Shri Rajesh Kumar Agarwal

from payment of penalty as well as complete

immunity from prosecution under the Customs Act.

19.It was urged that the detention order has lost

its significance and relevance in view of the

immunity from prosecution granted by the Settlement

Commission under Sub-section (1) of Section 127-H

of the said Act.

20.The last of this batch of matters, which was

heard together, is Writ Petition (Crl.) No. 220 of

2011, filed by one Kamlesh N. Shah, the father of

the proposed detenue, Bhavik Kamlesh Shah, against

whom Detention Order No. PSA-1211/CR-18/SPL-3(A)

was passed on 16.9.2011, under Section 3(1) of

COFEPOSA Act, 1974. The grounds of challenge to

the detention order are a little different from

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those which had been taken in the earlier matters.

In the present case, apart from the grounds of

delay, it has been indicated that on 7.12.2010, the

proposed detenue had been taken into custody and

was shown to be formally arrested on 9.12.2010, by

the Director of Revenue Intelligence, Mumbai. On

3.2.2011, he was granted bail by the Court of

Sessions and, while the matter was pending, the

impugned detention order was passed on 16.9.2011,

after a lapse of more than nine months from the

date of his arrest. The Petitioner has also taken

a ground that certain vital and material documents,

as indicated in Ground A of the Petition, had not

been placed before the Detaining Authority, as a

result of which the detention order stood vitiated

on the ground of non-application of mind.

Reference was made to the several decisions of this

Court in Asha Devi Vs. K. Shivraj [(1979) 1 SCC

222]; State of U.P. Vs. Kamal Kishore Saini [(1988)

Page 26 26

1 SCC 287]; and Ayya alias Ayub Vs. State of U.P.

[(1989) 1 SCC 374], and several other cases, where

this Court had quashed the orders of detention,

when relevant documents which could have had a

direct bearing on the detention order, had not been

placed before the Detaining Authority. It was

urged that, in the instant case, the retraction of

the detenue on various dates was not placed before

the Detaining Authority, which not only prejudiced

the detenue, but also resulted in the illegal order

of preventive detention being passed against him.

21.Responding to Mr. Mukul Rohatgi’s submissions

as also the submissions made by the other learned

counsel, the learned Additional Solicitor General,

Mr. P.P. Malhotra, submitted that although the

matter as far as challenge to detention orders at

the pre-detention stage on grounds other than those

categorized in Alka Subhash Gadia ’s case, had been

considered earlier on 10

th

July, 2012, the Court was

Page 27 27

of the view that the matter required further

consideration. In that context, the learned

Additional Solicitor General repeated his earlier

submissions, with particular reference to the

decision of this Court in Sayed Taher Bawamiya ’s

case (supra) and Atam Prakash’s case (supra),

wherein it had been held that a detention order

could be challenged at the pre-execution stage but

only with regard to the five exceptions carved out

in Alka Subhash Gadia’s case (supra).

22.In addition, Mr. Malhotra submitted that the

delay in execution of the order of detention was

mostly on account of the fact that the proposed

detenue had absconded either just before or after

the passing of the detention order, thereby making

execution difficult, or at times impossible, but,

as was held in the case of Union of India Vs. Maj.

Gen. Madan Lal Yadav [(1996) 4 SCC 127], a

detention order which had been validly passed by

Page 28 28

the concerned authority cannot be rendered invalid

in view of the fact that the proposed detenue had

absconded and was evading arrest. It was indicated

that the proposed detenue should under no

circumstances be allowed to take the benefit of his

own wrong. Mr. Malhotra submitted that the same

principle had also been followed by this Court in

Dropti Devi Vs. Union of India [(2012) 7 SCC 499],

where it was found that the order of detention had

been passed as far back as on 23

rd

September, 2009,

and though the order was preventive in nature and

the maximum period of detention was one year, the

detention order could not be executed because the

second petitioner had evaded arrest wilfully and,

he could not, therefore, take advantage of his own

conduct.

23.On the ground of the detention order having

become stale, Mr. Malhotra urged that as was

pointed out by this Court in Saeed Zakir Hussain

Page 29 29

Malik Vs. State of Maharashtra [(2012) 8 SCC 233],

no hard and fast rule can be laid down on the

question of delay and it will depend on the facts

of each case. The learned ASG referred to the

decision of this Court in Bhawarlal Ganeshmalji Vs.

State of Tamil Nadu [(1979) 1 SCC 465], wherein it

had been urged that the detention order was liable

to be quashed on the ground of delay since it had

been passed in 2009 and had not been executed till

that date. Mr. Malhotra pointed out that this

Court held that while it is true that the purpose

of detention under the COFEPOSA Act is not punitive

but preventive and that there must be a live and

proximate link between the grounds of detention

alleged by the Detaining Authority and the purpose

of detention, and that in appropriate cases it may

be assumed that the live link is snapped, one may

strike down an order of detention, but where the

delay is found to be on account of the recalcitrant

Page 30 30

conduct of the detenue in evading arrest, it may be

considered that the link had not snapped, but had

been strengthened. In the said case, the detenue

was found to be absconding and action was

accordingly taken under Section 7 of the COFEPOSA

Act and he was declared to be a proclaimed

offender. Despite the several efforts made to

apprehend the proposed detenue, he could not be

arrested till he surrendered on 1

st

February, 1978,

and in that context this Court held that Mr.

Jethmalani’s submissions regarding the delay in

execution of the detention order could not be

accepted. Mr. Malhotra submitted that this Court

had not only refused to quash the detention order,

but had categorically observed that it would

strengthen the link.

24.Mr. Malhotra also referred to the decisions of

this Court in Union of India Vs. Amrit Lal

Manchanda [(2004) 3 SCC 75] as also in M.

Page 31 31

Ahamedkutty Vs. Union of India [(1990) 2 SCC 1],

wherein it had also been observed that where the

passage of time is caused by the detenue himself by

absconding, the satisfaction of the Detaining

Authority cannot be doubted and the detention order

cannot be held to be bad on that ground. Mr.

Malhotra urged that in Union of India Vs. Arvind

Shergill [(2000) 7 SCC 601], this Court looked into

the continued validity of a detention order after a

passage of 13 years. This Court came to the

conclusion that since the proposed detenue was

himself instrumental in causing the inordinate

delay, he could not challenge the order of

detention on the ground of delay. Reference was

also made to the decisions of this Court in Vinod

K. Chawla Vs. Union of India [(2006) 7 SCC 337],

Hare Ram Pandey Vs. State of Bihar [(2004) 3 SCC

289], Naresh Kumar Goyal Vs. Union of India [(2005)

8 SCC 276] and Subhash Muljimal Gandhi Vs. L.

Page 32 32

Himingliana [(1994) 6 SCC 14], wherein in common it

had been held that the delay in executing the order

of detention could not be taken as a ground for

quashing of the detention order, where such delay

was occasioned by the detenue himself.

25.Mr. Malhotra submitted that in all of the

aforesaid judgments cited by him, even though there

was a delay in execution of the detention order,

yet, the same were not quashed on that account, as

the proposed detenues were wilfully evading arrest

and were absconding. Mr. Malhotra submitted that

once an order of detention had been passed, the

person against whom the detention order was

directed cannot abscond and take benefit of his own

wrong. It was further submitted that it was not

possible for anyone, other than the proposed

detenue, to know the acts which may have been

committed by the proposed detenue after the passing

of the detention order, and it was, therefore, not

Page 33 33

possible for the Government to keep a track of the

same and a presumption ought to be drawn against

the absconder that he is absconding with the

intention of evading his arrest. Accordingly, it

would be wrong to contend or presume that the

accused, who was absconding, would not continue or

was not continuing his prejudicial activities and

that the live and proximate link was snapped.

26.It was lastly submitted that for the purpose of

detaining a person under the COFEPOSA Act, a

Warrant of Arrest is issued under Section 4 of the

Act and the said warrant continues to be in force

unless the same is executed, withdrawn or

cancelled. Once a valid warrant had been issued,

it could not be taken as a ground to quash the

detention order simply because the detenue had been

successful in evading arrest or detention. The

learned ASG, therefore, prayed that the Writ

Petitions filed by the Petitioners, as also the

Page 34 34

Appeals and the Transfer Petitions, were liable to

be dismissed.

27.Out of the 11 matters heard together, detention

orders had been passed by the State of Maharashtra,

under delegated powers, in six matters. Dealing

with each case on its own merit, Mr. B.H.

Marlapalle, learned Senior Advocate, who appeared

on behalf of the State of Maharashtra in all the

matters, submitted that in Nitish Prakashchand

Kothari's case [W.P.(Crl) No. 138 of 2011], the

detention order had been passed under Section 3(1)

of the COFEPOSA Act, 1974, but the same was not

executed till the Petitioner himself approached

this Court. It was submitted that action under

Section 7(1)(b) of the COFEPOSA Act was taken by

the Detaining Authority on 27.1.2010, and an arrest

warrant was also issued against him. Mr.

Marlapalle submitted that the Petitioner had relied

on the revocation of the detention order passed

Page 35 35

against co-accused, Shri Tarun Popatlal Kothari,

against whom an order of detention was also passed

simultaneously on 3.12.2009, on the basis of a

common proposal. However, the said detention order

was revoked on the views expressed by the Advisory

Board. Mr. Marlapalle urged that the proposed

detenue was claiming parity with the order passed

in Shri Tarun Popatlal Kothari 's case and that he

had not been absconding, which caused the detention

order to become stale. Mr. Marlapale submitted

that the Petitioner had also claimed that he had

not indulged in any prejudicial activity during the

said intervening period. Furthermore, his case

could not be placed before the Advisory Board and,

there was no occasion, therefore, for the Board to

record its opinion in this case. Despite the

above, Mr. Marlapalle submitted that since the

Petitioner did not choose to challenge the

Page 36 36

detention order for about two years, his Petition

deserves to be dismissed.

28.With regard to Suresh Kumar Ukchand Jain 's case

[S.L.P. (Crl.) No. 1938 of 2011 (now Appeal)], the

detention order was passed on 21.8.2006, under

Section 3(1) of the COFEPOSA Act, and the said

order could not also be executed. Mr. Marlapalle

submitted that although the detention order had

been passed in 2006, it came to be challenged for

the first time before the Bombay High Court in

Criminal Writ Petition No. 3233 of 2010, and was

dismissed on 31.1.2011. Mr. Marlapalle submitted

that in this matter the main ground of challenge to

the detention order was the ground of delay, which

caused the order of detention to become stale.

Responding to Mr. Rohatgi's submissions, Mr.

Marlapalle contended that the delay in execution of

the detention order was partly on account of the

authorities themselves, since in the affidavit

Page 37 37

filed by the Detaining Authority before the High

Court, it was indicated that the detention order

had been passed on 21.8.2006, but was received in

the Office of the Commissioner of Police on

6.4.2007, and was received, in turn, by Vashi

Police Station on 20.4.2007. Mr. Marlapalle

submitted that when an attempt was made to serve

the detention order on the Appellant at his

permanent address on 30.5.2007, the Appellant was

reported not to be living at the address given and

the occupant of the room, one Neena Modi, informed

the police officer concerned that the detenue was

not staying at the said address and that the

Appellant had given five different addresses, but

the address at Vashi, Navi Mumbai had not been

furnished. However, Mr. Marlapalle accepted the

fact that there is no explanation provided as to

why the detention order could not be executed by

taking recourse to Section 7 of the COFEPOSA Act,

Page 38 38

1974, or why steps were not taken to declare the

Appellant as an absconder from 9.7.2007, till he

approached the High Court in Writ Petition No. 3233

of 2010.

29.In the third case, which is S.L.P.(Crl.) No.

1909 of 2011 (now Appeal), filed by one Anil

Kailash Jain, the detention order was passed on

13.12.2007, on the ground of duty evasion. Mr.

Marlapalle submitted that a joint proposal had been

submitted for the preventive detention of 13

persons including the Appellant, and orders were

passed accordingly. However, while the detention

orders against the co-accused individually were

executed, in the Appellant's case, the same could

not be executed. Subsequently, orders were passed

under Section 7(1)(b) of the COFEPOSA Act and a

report under Section 7(1)(a) of the said Act was

submitted to the Judicial Magistrate, First Class,

New Delhi. Mr. Marlapalle submitted that the

Page 39 39

Appellant filed Criminal Writ Petition No. 2675 of

2010, at the pre-execution stage, and the same was

dismissed by the Bombay High Court on 5.1.2011, on

the basis of the decision in Alka Subhash Gadia 's

case.

30.In W.P. (Crl.) No. 220 of 2011, filed by

Kamlesh N. Shah, the detention order had been

passed under Section 3(1) of the COFEPOSA Act,

1974, on 16.9.2011, in regard to Bhavik Shah, the

proposed detenue. The proposed detenue, who is the

son of the Petitioner, was alleged to be a havala

operator, who had allegedly evaded customs duty to

the tune of Rs. 3 crores. Mr. Marlapalle submitted

that despite efforts to serve the detention order,

the same could not be served as the proposed

detenue remained untraceable. Summons to the

detenue were also issued by the Sponsoring

Authority and served on the family members of the

detenue. On his failure to respond to the summons,

Page 40 40

an order was passed under Section 7(1)(b) of the

COFEPOSA Act, on 7.12.2011. Mr. Marlapalle also

submitted that as far as the retractions made by

the purported detenue are concerned, the same were

made after he had been granted bail and copies

thereof were placed before the Additional Chief

Metropolitan Magistrate on 31.5.2011, without

copies of the same being served on the prosecutor

of the departmental representative. Mr. Marlapalle

submitted that it is obvious that the Petitioner

had knowledge of the detention order before he

applied for bail and the retractions were made

thereafter. Mr. Marlapalle submitted that the

retractions, which were sent by post, were only for

the purposes of challenging the detention order,

when it was passed.

31.W.P.(Crl.) No. 249 of 2011 has been filed by

Manju R. Agarwal, the wife of the proposed detenue,

Shri Rajesh Agarwal, against whom the detention

Page 41 41

order was passed under Section 3(1) of the COFEPOSA

Act, on 23.10.2010. The detention order could not

be executed, till 12.12.2011, when the Writ

Petition came to be filed before this Court. Mr.

Marlapalle submitted that this is one of those

cases in which the proposed detenue had approached

the Settlement Commission under Section 127H of the

Customs Act, 1962 and a settlement had been arrived

at and the Settlement Commission had granted

immunity from prosecution under the Customs Act to

the Petitioner and the co-accused. It is on that

basis that a representation was made on 11.11.2011

for revocation of the detention order dated

23.12.2010. Mr. Marlapalle submitted that it is

not known as to whether the said representation was

decided or not. No submission was made by Mr.

Marlapalle on the issue as to whether the detention

order was sustainable after the Settlement

Page 42 42

Commission had granted immunity from prosecution

under the Customs Act, 1962.

32.Writ Petition (Crl.) No. 35 of 2011 and S.L.P.

(Crl.) No. 2442 of 2012 (now Appeal), have been

filed challenging the detention order passed under

Section 3(1) of the COFEPOSA Act on 12.3.2001.

Although, the petition has been filed by one Shri

Suresh D. Hotwani, the name of the proposed detenue

is Nitesh Ashok Sadarangani. The main ground of

challenge is that the detention order had become

stale since it could not be executed for nine

years. Mr. Marlapalle urged that the Writ Petition

was a duplication of the relief prayed for in the

Special Leave Petition and was not, therefore,

maintainable. Mr. Marlapalle submitted that the

detention order had earlier been challenged by the

Petitioner before the Bombay High Court in Criminal

Writ Petition No. 1645 of 2010. The Writ Petition

was finally dismissed on 5.1.2011, which order had

Page 43 43

been challenged in the Special Leave Petition, in

the first instance, and it is, thereafter, that

Writ Petition (Crl.) No. 35 of 2011 was filed on

2.2.2011 under Article 32 of the Constitution.

Accordingly, the Writ Petition is not maintainable

and is liable to be dismissed.

33.Mr. Marlapalle submitted that, on behalf of the

Detaining Authority, it had been stated on

affidavit that the detention order could not be

served on the proposed detenue, as he remained

absconding despite the steps taken to declare him

as an absconder under Sections 7(1)(a) and 7(1)(b)

of the COFEPOSA Act. Mr. Marlapalle submitted that

the question of snapping of live link was not

available to the Petitioners having regard to the

fact that the same was not a ground which came

within the five exceptions in Alka Subhash Gadia 's

case. Mr. Marlapalle repeated that the passage of

time between the passing of the detention order and

Page 44 44

the challenge thrown thereto could not, by itself,

be a reason to hold that the detention order had

become stale. Whether the detention order had

become stale or not was required to be examined in

the circumstances of each case and, in any event,

the proposed detenue could not take advantage of

his own wrong by evading the detention order and

then challenging the same on the ground of delay.

34.Mr. Marlapalle urged that in Hare Ram Pandey

(supra), there was a delay of nine years, but it

was held that such delay, in itself, was

insufficient to hold that the detention order had

become stale. Learned counsel also referred to the

other decisions in Alka Subhash Gadia (supra),

Subhash Muljimal Gandhi (supra), Naresh Kumar Goyal

(supra) and also State of Maharashtra Vs. Bhavrao

Gawanda [(2008) 3 SCC 613], in which the delay

ranged between four years and seven years, but it

was held by this Court that such a ground was

Page 45 45

inadequate as the proposed detenue, having

absconded, could not, thereafter, asked for the

protection of the law.

35.Mr. Marlapalle lastly submitted that, in each

case, there was a likelihood of the proposed

detenues being released on bail, which was also one

of the reasons which prompted the Detaining

Authorities from passing the detention orders

impugned in these several proceedings.

36.In addition to the above, Mr. Marlapalle drew

the Courts' attention to Section 5A of the National

Security Act, 1980, hereinafter referred to as "NSA

Act, 1980", which provides that the grounds of

detention are severable on certain defined grounds

so as not to affect the validity of the detention

order as a whole. Reference was also made to

Section 7 of the Act which empowers the Central

Government to pass appropriate orders in relation

Page 46 46

to absconding persons, which are in pari materia

with the provisions of Section 7(1)(b) of the

COFEPOSA Act, 1974.

37.Mr. Marlapalle submitted that all the Writ

Petitions, Appeals and Transfer Petitions were

liable to be dismissed.

38.The grounds taken on behalf of the several

Petitioners/ Appellants may be encapsulated in the

following manner:

(i) That, the detention orders passed in

respect of the several proposed detenues

were challenged at the pre-detention

stage, on grounds other than those

indicated in Alka Subhash Gadia 's case

(supra), and that the five exceptions

carved out in Alka Subhash Gadia 's case

were illustrative and not exhaustive.

Page 47 47

(ii) Whether any live link could be said to

exist between the order of detention and

the object sought to be achieved by

treating the detention order as valid

after the passage of several years ranging

from three to sixteen years, during which

period there is no record of the proposed

detenue having undertaken any activities

similar to the ones indicated in the

detention order? In the absence of any

live link, can the detention order

survive?

(iii)Whether having absconded or evaded the

execution of the detention order, the

proposed detenue could take advantage of

such fact and challenge the detention

order, which remains unexecuted?

(iv) Once the Settlement Commission under the

Customs Act accepts a settlement and

Page 48 48

provides complete immunity from

prosecution under Section 127H of the

Customs Act, could the detention order be

passed or proceeded with?

(v) Whether, when the ordinary law of the land

is available, orders of preventive

detention can be passed?

(vi) Whether the provisions of Section 7 of the

COFEPOSA Act, 1974, and Section 7 of the

National Security Act, 1980, can be made

the basis for making an order of

preventive detention?

39.As far as the first ground of challenge is

concerned, we have already indicated in our earlier

order of 10th July, 2012, that the five exceptions

culled out in Alka Subhash Gadia 's case were not

intended to be exclusive and that the decision in

Sayed Taher Bawamiya 's case could not be accepted.

We had indicated that it was not the intention of

Page 49 49

the Hon'ble Judges in Alka Subhash Gadia 's case to

confine the challenge at the pre-execution stage

only to the five exceptions mentioned therein, as

that would amount to stifling and imposing

restrictions on the powers of judicial review

vested in the High Courts and the Supreme Court

under Articles 226 and 32 of the Constitution.

After considering other decisions delivered on the

aforesaid proposition, after the decision in Alka

Subhash Gadia's case, we had also held that the

exercise of powers vested in the superior Courts in

judicially reviewing executive decisions and orders

cannot be subjected to any restrictions, as such

powers are untrammelled and vested in the superior

Courts to protect all citizens and non-citizens,

against arbitrary action. As submitted by Mr.

Rohatgi at the very beginning of his submissions,

we had indicated that law is never static, but

dynamic and that the right to freedom being one of

Page 50 50

the most precious rights of a citizen, the same

could not be interfered with as a matter of course

and even if it is in the public interest, such

powers would have to be exercised with extra

caution and not as an alternative to the ordinary

laws of the land.

40.With regard to the second, third and sixth

grounds of challenge, I had also dealt at length on

whether a preventive detention order, which was not

meant to be punitive, but preventive, could be

executed after a lapse of several years during

which period the live link between the order and

the objects sought to be achieved by executing the

order, was snapped. In my view, since it was the

intention of the Sponsoring Authorities that a

person having criminal propensities should be

prevented from indulging in the same to the

prejudice of the public at large and from also

indulging in economic offences against the Revenue,

Page 51 51

it would have to be established that the intention

with which the preventive detention order had been

passed continued to subsist so that the same could

be executed even at a later date. In none of the

instant cases, have the Sponsoring Authorities or

the Detaining Authorities been able to establish

that after the passing of the detention order the

proposed detenues had continued with their

activities, as enumerated in the detention orders,

which would support the proposition that the object

of the detention orders continued to be valid, even

after the lapse of several years. Having regard to

the above, where the detention orders in the

instant group of cases have not been executed for

more than two years and there is no material on

record to indicate that the proposed detenue had,

in the meantime, continued his anti-social

activities, it has to be held that the detention

Page 52 52

orders in respect of such proposed detenues were no

longer relevant and must be quashed.

41.As far as the fourth ground is concerned, one

has to bear in the mind that the provision of the

Customs Act and other Revenue laws are mainly aimed

at recovery of dues and penalties, payment whereof

had been avoided and it is such manner of thinking

which resulted in the amendment of the Customs Act,

1962, by the inclusion of Chapter XIVA, by Act 21

of 1998. Chapter XIVA relates to settlement of

cases and contains Sections 127A to 127N. Section

127B empowers any importer, exporter or any other

person to make an application in respect of a case

pertaining to him, to the Settlement Commission, to

have the case settled. The Settlement Commission

has been given powers to reopen completed

proceedings and, thereafter, allow the said

applications under Section 127F. In addition, the

Settlement Commission has been empowered under

Page 53 53

Section 127H to grant immunity from prosecution and

penalty. Section 127M lays down that any

proceeding under Chapter XIVA before the Settlement

Commission would be deemed to be a judicial

proceeding, within the meaning of Sections 193 and

228 of the Customs Act, 1962 and also for the

purposes of Section 196 of the Indian Penal Code.

42.Clearly, the object with which the said

provisions had been introduced in the Customs Act,

was not to continue with criminal prosecution or to

take other steps, if a settlement proposed by an

alleged offender was accepted by the Settlement

Commission, which granted immunity from

prosecution under the Act to the said applicant,

after considering the matter from its various

angles. Once such immunity from criminal

prosecution is granted, the question of preventive

detention for the same cause of action loses its

relevance, unless the proposed detenue under the

Page 54 54

provisions of the COFEPOSA Act, 1974, or any other

ancillary provisions, is involved in fresh

transgression of the law.

43.At this stage, I may take notice of the

provisions of Sections 6 and 7 of the COFEPOSA Act,

1974. Section 6 of the said Act provides as

follows:

"6. Detention order not to be invalid

or inoperative on certain grounds – No

detention order shall be invalid or

inoperative merely by reason –

(a) That the person to be

detained thereunder is outside the

limits of the territorial jurisdiction

of the Government or the officer

making the order of detention, or

(b) That the place of detention of

such person is outside the said

limits."

44.Section 7, on the other hand, deals with

matters which are relevant to the facts of this

case, since when a detention order cannot be

executed against the proposed detenue, it may be

Page 55 55

presumed that he was absconding. Section 7 deals

with the powers of the Government in relation to

absconding persons. Since the same is of

considerable relevance to the facts of this case,

being one of the main grounds on which the orders

of detention have been challenged, the same is also

reproduced hereinbelow:

"7. Powers in relation to absconding

persons – (1) If the appropriate

Government has reason to believe that

a person in respect of whom a

detention order has been made has

absconded or is concealing himself so

that the order cannot be executed, the

Government may–

(a) make a report in writing of

the fact to a Metropolitan

Magistrate or a Magistrate of the

first class having jurisdiction in

the place where the said person

ordinarily resides ; and thereupon

the provisions of sections 82, 83,

84 & 85 of the Code of Criminal

Procedure, 1973 (2 of 1974), shall

apply in respect of the said

person and his property as if the

order directing that he be

detained were a warrant issued by

the Magistrate ;

Page 56 56

(b) by order notified in the

Official Gazette direct the said

person to appear before such

officer, at such place and within

such period as may be specified in

the order ; and if the said person

fails to comply with such

direction, he shall, unless he

proves that it was not possible

for him to comply therewith and

that he had, within the period

specified in the order, informed

the officer mentioned in the order

of the reason which rendered

compliance therewith impossible

and of his whereabouts, be

punishable with imprisonment for a

term which may extend to one year

or with fine or with both.

(2) Notwithstanding anything

contained in the Code of Criminal

Procedure, 1973 (2 of 1974), every

offence under clause (b) of sub-

section (1) shall be cognizable."

45.It will be seen from the provisions of Section

7 that if the appropriate Government has reason to

believe that a person in respect of whom a

detention order has been made, is absconding, or is

concealing himself so that the order cannot be

Page 57 57

executed, the Government may take recourse to the

provisions of Sections 82, 83, 84 and 85 of the

Code of Criminal Procedure and his property, as if

the order directing him that he be detained were a

warrant issued by the Magistrate. Section 7(1)(b)

also provides for penal consequences, in the event

directions given thereunder, are not complied with

by the proposed detenue.

46. Accordingly, Section 7 empowers the Government

to take recourse to either the provisions of the

Code of Criminal Procedure relating to absconding

persons or pass an order directing the person

concerned to appear before the concerned officer

and on the detenue's failure to do so, to inflict

punishment with imprisonment for a term which could

extend to one year or with fine or both.

47.The provisions of Sections 6 and 7 of the

National Security Act, 1980, are identical to the

Page 58 58

provisions of Sections 6 and 7 of the COFEPOSA Act,

1974.

48.In my view, the said provisions clearly

enumerate the powers vested in the Authorities when

a proposed detenue absconds. That, in my view, is

the ordinary law of the land, and not preventive

detention, which is meant to prevent the commission

of offences, and not to punish an individual for

violation of statutory provisions. Accordingly, in

my view, the submissions made on behalf of the

Union of India and the State of Maharashtra, cannot

be accepted and absconsion cannot, therefore, be

made a ground for making an order of preventive

detention. Neither in Dropti Devi's case (supra)

nor in Amrit Lal Manchanda 's case or in M.

Ahamedkutty's case had the above-mentioned

provisions been brought to the notice of the

learned Judges who heard the matters, but had no

occasion to consider the same.

Page 59 59

49.In order to arrive at a decision in these

matters and to answer the question as to whether an

order of preventive detention can continue to

subsist after a long period had lapsed from the

date of passing of the order, it will, first of

all, be necessary to appreciate the difference

between preventive detention and the ordinary

criminal law providing for detention and arrest.

While the Constitution, which is the cornucopia of

all laws, accepts the necessity of providing for

preventive detention, it also provides certain

safeguards against arbitrariness and making use of

the provision as a tool against political

opponents. Since the said provision deprives a

citizen of some of the basic and fundamental rights

guaranteed to him under the Constitution, the

Courts have dealt with laws relating to preventive

detention with great care and caution to ensure

that the provision was not misused by the

Page 60 60

Investigating Authorities as an easy alternative to

proper investigation. Normally, the life of a

preventive detention order is one year. Such a

period is intended to give the detenue, who is

detained without any trial, an opportunity to

introspect and reflect into his past deeds, and to

dissuade him from indulging in the same in future.

In other words, the period of detention is intended

not to punish the detenue, but to make him realize

the impact of his earlier indiscretions on society

and to discontinue the same.

50.Both, the Revenue, as also the police

authorities, appear to be myopic in regard to the

dividing line between preventive detention and

arrest for a crime actually committed. On account

of the above, the State and its authorities have

attempted to justify the continuance of the

validity of detention orders even after the lapse

of several years after the passing of the detention

Page 61 61

order, citing principles such as a person cannot

take advantage of his own wrong, in support

thereof. Learned counsel for the respondent

authorities have fused the two principles together

in dealing with the question of preventive

detention. A person evading service of an order of

preventive detention cannot, in my view, be treated

with the same yard-stick as a person, accused of

having committed a criminal offence and evading

arrest to thwart the criminal process initiated

against him. The two principles stand on different

footings. In the first place, the proposed detenue

is detained without being made an accused in

connection with any particular case, but to prevent

him from committing an offence, whereas in the

second place, a person actually charged with having

committed an offence is on the run to avoid the

consequences of his criminal acts. Once this

difference is appreciated, an order of detention

Page 62 62

passed and remaining unexecuted for several years

becomes open to question regarding its

executability. If the intention of the authorities

in passing a detention order is to prevent the

commission of an offence by the proposed detenue in

the future, then after the passage of a number of

years, the concerned authorities will have to

consider whether the order of preventive detention

should at all be executed in the absence of any

information that the proposed detenue had continued

with unlawful activities. When the object of a

preventive detention order is to prevent the

proposed detenue from committing any offence, which

is either against the national interest or the

interest of society in the future and there is

nothing on record to indicate that the proposed

detenue had indulged in any such activity after the

order of preventive detention was passed, it would,

in my view, be illogical to pursue the execution of

Page 63 63

the detention order as the arrest and detention of

the proposed detenue would become irrelevant and

would not achieve the object for which it had been

passed.

51.The decisions cited by Mr. Malhotra and Mr.

Marlapalle, and in particular in Dropti Devi's case

(supra), do not help the stand taken by the

authorities in this regard. The concept of a

person being prevented from taking advantage of his

own wrong cannot, in my view, be applied in the

case of a detention order where the object of

passing such an order is quite different from

proceeding against a person charged with having

committed a criminal offence. In my view, the

continued validity of a detention order would

depend on whether the proposed detenue was in the

record books of the authorities as a person

habitually indulging in activities which were

against the national interest and society in

Page 64 64

general and that it was, therefore, necessary in

the public interest to detain him for a period of

one year to prevent him from continuing with such

activities and not to punish him as such. In

Dropti Devi's case (supra) and in the several other

decisions cited by the learned Additional Solicitor

General, the Court had confined itself only to the

question regarding the validity of the detention

order, and in the process appears to have missed

the main issue regarding the difference between an

order of preventive detention and the issuance of a

Warrant of Arrest against a person in connection

with a particular offence.

52. Accordingly, after taking into account the

submissions made on behalf of the respective

parties on the different aspects of the detention

orders, I am inclined to hold that not only is a

proposed detenue entitled to challenge the

detention order at the pre-execution stage, but he

Page 65 65

is also entitled to do so after several years had

elapsed after the passing of the detention order on

grounds other than the five grounds enumerated in

Alka Subhash Gadia 's case(supra). I am also

inclined to hold that orders of detention must not,

as a matter of course, be read as an alternative to

the ordinary laws of the land to avoid the rigours

of investigation in order to make out a case for

prosecution against the proposed detenue. I also

hold that if a dispute leading to the issuance of

the detention order is settled on the basis of a

statutory provision such as Chapter XIVA of the

Customs Act, 1962 and in terms of the Statute

immunity from prosecution under Section 127H of the

Act is given, the continuance of the order of

detention would be completely illogical and even

redundant. Accordingly, in such cases, the orders

of preventive detention are liable to be quashed

along with the Warrants of Arrest and Proclamation

Page 66 66

and Attachment issued under Sections 82 and 83 of

the Code of Criminal Procedure.

53.In the light of the views expressed by me

hereinbefore, the matters indicated hereinbelow are

allowed and the orders of detention challenged

therein are quashed on the ground that the said

orders had become stale and the live link between

the orders of detention and the object sought to be

achieved by the said orders, stood snapped. Some

of the orders had been made thirteen years ago and

the very purpose of such detention orders had been

rendered meaningless in the absence of any material

that the proposed detenues had continued to indulge

in activities which form the basis of the

preventive detention orders. The following matters

include Appeals arising out of the Special Leave

Petitions and Writ Petitions either filed by the

detenues themselves or their agents:

Page 67 67

(i)Writ Petition (Crl.) No. 137 of 2011,

filed by Subhash Popatlal Dave .

(ii)Writ Petition (Crl.) No. 35 of 2011,

filed by Suresh D. Hotwani.

(iii)Writ Petition (Crl.) No. 138 of 2011,

filed by Nitin Prakashchand Kothari .

(iv)Writ Petition (Crl.) No. 249 of 2011,

filed by Manju R. Agarwal, wife of

proposed detenue, Rajesh Kumar Agarwal .

(v)Criminal Appeal @ SLP (Crl.) No. 1909 of

2011, filed by Anil Kailash Jain.

(vi)Criminal Appeal @SLP(Crl.) No. 1938 of

2011, filed by Sureshkumar Ukchand Jain .

(vii)Criminal Appeals @ SLP (Crl.) Nos. 2091-

2092, filed by Rajesh Verma.

54.However, the Transferred Cases @ Transfer

Petition (Crl.) Nos. 38-39 of 2013, filed by Vijay

Ram Bilas Gupta, Writ Petition (Crl.) No. 220 of

2011, filed by Kamlesh N. Shah and Writ Petition

Page 68 68

(Crl.) No. 14 of 2012, filed by Mohan Lal Arora

are, in my judgment, pre-mature and are disallowed

at this stage.

55.Special Leave Petition (Crl.) No. 2442 of 2012,

filed by Suresh D. Hotwani is directed against the

order dated 5th January, 2011, passed by the

Division Bench of the Bombay High Court in Criminal

Writ Petition No. 1645 of 2010, rejecting the

prayer made for quashing the detention order passed

against Nitesh Ashok Sadarangani on 12.3.2001.

Since the said detention order is being quashed in

Writ Petition (Crl.) No. 35 of 2011, also filed by

the Petitioner directly against the detention

order, the order of the High Court impugned in the

Special Leave Petition has necessarily to be set

aside also. Criminal Appeal @ S.L.P.(Crl.) No.

Page 69 69

2442 of 2012 is, accordingly, allowed and the order

of the High Court impugned therein is set aside.

………………………………………………CJI.

(ALTAMAS KABIR)

New Delhi

Dated:July 16, 2013.

Page 70 70

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO.137/2011 ETC.ETC.

Subhash Popatlal Dave .. Petitioner

Versus

Union of India & Anr. .. Respondents

J U D G M E N T

GYAN SUDHA MISRA, J .

Having deliberated over the arguments

advanced by learned counsel for the contesting parties in

the light of the ratio of the authoritative pronouncements of

this Court referred to hereinafter on the issue involved

Page 71 71

herein which also includes a Constitution Bench judgment, I

have not been able to persuade myself to accept the

position that the Writ Petitions, Appeals and Transfer Cases

under consideration are fit to be allowed.

2. A common question initially arose in all these

matters as to whether detention order passed under the

provisions of the Conservation of Foreign Exchange and

Prevention of Smuggling Activities Act 1974 (shortly referred

to as ‘the COFEPOSA Act 1974) could be challenged at the

pre-execution stage confined to the five exceptions carved

out by this Court in the case of Additional Secretary to

the Govt. of India And Ors . vs. Alka Subhash Gadia

And Anr. 1992 Supp (1) SCC 496 or whether such

challenge could be maintained inter alia on other grounds.

This Court (Bench) has already delivered a judgment on

this question vide judgment and order dated 10.07.2012

reported in (2012) 7 SCC 533 that the right of a proposed

detenue to challenge a preventive detention order passed

Page 72 72

against him may be challenged at the pre-execution stage

on grounds other than those set out in paragraph 30 of the

judgment in Alka Subhash Gadia’s case and it was held

therein that the order of preventive detention can be

challenged beyond the five conditions enumerated in Alka

Subhash Gadia’s case. To make it explicitly clear it may

be reiterated that this Court has already held that the order

of preventive detention can be challenged beyond the five

grounds which have been enumerated in the case of Alka

Subhash Gadia’s case even at the pre-execution stage.

3. However, the next important question that has

cropped up in all these petitions/appeals is as to whether the

proposed detenues having absconded or evaded the

execution of the detention order, who subsequently

challenged the order of his detention even at the pre-

execution stage after a long lapse of time could take

advantage of non-execution and challenge the detention

order which remained unexecuted. For the sake of brevity, I

Page 73 73

refrain from repeating the facts of each writ petition,

Appeals and transfer petition herein which have been

consolidated and heard as a batch, as they have already

been recorded in the judgment and order of Hon’ble the CJI

Justice Altamas Kabir.

4. Learned counsels representing the petitioners’

cause submitted, which again have been elaborately stated

in the judgment and order of the Hon’ble CJI, that if the

detention orders which were under challenge were no

longer relevant and had become otiose as it ceased to have

a live link between the order of detention and the

subsequent circumstances when it loses its purpose, as also

having regard to the fact that the object of a detention

order is not to punish its citizen for a crime with which he

has not been charged but to prevent him from committing

such crime in future then, whether such order of preventive

detention can be held to be valid after a long lapse of time

during which the order could not be executed as also the

Page 74 74

fact that it was not executed because the same was

allowed to be challenged even at the pre-execution stage,

for any ground available to the proposed detenue. Hence, if

such order could not be executed as the detenue was

evading execution by absconding or even by challenging

it in a court of law on any ground available to him under the

law, then whether such order of detention can be quashed

and set aside merely due to the fact that it remained

pending even before it was executed and consequently lost

its efficacy and purpose due to long lapse of time.

5. The life and duration of the order of preventive

detention is no doubt usually for a period of one year or

the period to the extent which may be extended. But if the

order of preventive detention gets enmeshed into litigation

by virtue of its challenge on the ground that it was fit to

be challenged even before it was executed or if the same

could not be executed on account of the fact that the order

of detention could not be served on the proposed detenue

Page 75 75

as he was absconding and evading his arrest, then whether

such detention order is fit to be quashed and set aside

merely due to efflux of time rendering the order of detention

a nullity in spite of existence of valid, legal and sustainable

grounds for issuance of the detention order.

6. There is absolutely no difficulty in accepting the

unequivocal position that the purpose of passing the order

of preventive detention is not punitive but merely

preventive which clearly means that if the authorities are

in possession of sufficient materials indicating that the

proposed detenue had been indulging in economic offences

violating the provisions and jumping the riders imposed by

the COFEPOSA Act or other Acts of similar nature, then

whether such order can be allowed to be set aside merely

due to long lapse of time accepting the plea that there is no

live link between the order sought to be quashed and the

intention of the authorities to detain the detenue by virtue of

such detention order. This Court in a series of decisions,

Page 76 76

some of which have been referred to hereinafter have

consistently dealt with this question and have been pleased

to hold that merely because the execution of the detention

order has taken long years before it could be executed, the

proposed detenue cannot be allowed to take advantage of

the passage of time during which the detention order remain

pending and thereafter take the plea that the order of

detention is fit to be quashed due to its pendency on which

the authorities had no control specially when the order of

detention is allowed to be challenged before the

appropriate court even at the pre-execution stage on any

ground that may be available to him except of course the

materials which has weighed with the authorities to pass the

order of detention as it is obvious that justifiability of the

material cannot be gone into at the pre-execution stage

since the order of detention and the ground for such order is

yet to be served on the proposed detenue as the proposed

Page 77 77

detenue was absconding or evading the execution of the

order on him for one reason or the other.

7. It would be worthwhile to refer to some of the

authorities relied upon by the respondent- Union of India and

the State of Maharashtra which clearly addresses the issues

on the point involved herein. A judgment and order of the

Constitution Bench may be cited as the first and foremost

authority on the issue involved which is the matter of Sunil

Fulchand Shah vs. Union of India, (2000) 3 SCC 409

wherein the Constitution Bench 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 the court. In fact, in Sayed

Taher Bawamiya vs. Govt. of India, (2000) 8 SCC 630,

Page 78 78

the factual position shows that 16 years had elapsed yet

this Court rejected the plea that the order had become

stale.

8. These aspects were once again highlighted in

Hare Ram Pandey vs. State of Bihar & Ors., (2004) 3

SCC 289, Union of India vs. Amrit Lal Manchanda &

Anr., (2004) 3 SCC 75 and Union of India vs. Vidya

Bagaria (2004) 5 SCC 577. In yet another matter of Union

of India & Ors. vs. Atam Parkash & Anr . (2009) 1 SCC

585, the detention order was challenged at the pre-

execution stage which remained pending for long and the

High Court had allowed the writ petition filed by the

respondents detenue therein and quashed the detention

order restraining the appellants from enforcing the order.

But, this Court overruled it and held that the judgment of

the High Court was clearly unsustainable and hence was set

aside. It was further held therein that the question as to

whether it would be desirable to take the respondents

Page 79 79

(detenue) back to custody shall be taken by the Government

within two months and appeal filed by the Union of India was

allowed.

9. Similarly, in the case of Bhawarlal

Ganeshmalji vs. State of Tamil Nadu And Anr . (1979) 1

SCC 465, the appellant had evaded arrest and surrendered

3 years after making of the order of detention but this Court

had held that the order was still effective if detenu himself

were to be blamed for delay. It is no doubt true that in this

matter, the Court had further held that the purpose of

detention under the COFEPOSA is not punitive but

preventive and there must be a ‘live and proximate link’ so

that if there is a long and unexplained delay between the

order of detention and arrest of the detenue, the order of

detention may be struck down unless the grounds indicate

a fresh application of mind of the detaining authority to the

new situation and the changed circumstances. But where

the delay is adequately explained and is found to be the

Page 80 80

result of recalcitrant or refractory conduct of the detenu in

evading the arrest, there is warrant to consider that the link

is not snapped. On the contrary, it could be strengthened

and that was what precisely happened in the said case.

10. In yet another case of Vinod K Chawla vs.

Union of India & Ors., (2006) 7 SCC 337, this Court had

occasion to consider regarding the effect of delay in

execution of the detention order wherein their Lordships

held that detenu evaded arrest and absconded and in spite

of best possible efforts made by the authorities to serve

the order, the order could not be executed. Taking the

circumstances into consideration under which the order of

detention could not be served, it was held that in view of

detenue’s own act of evading arrest, delay in execution of

the order did not render the detention invalid.

11. This Court’s decision in Union of India vs.

Parasmal Rampuria, (1998) 8 SCC 402 also throws

considerable light as to what would be the proper course for

Page 81 81

a person to adopt when he seeks to challenge an order of

detention on the available grounds like delay in execution of

detention order, delay in consideration of the

representation and the like and while dealing with the

impact of such situations on the order of detention, it was

observed therein that these questions were really

hypothetical in nature when the order of detention had not

been executed at all and challenge is made at pre-

execution stage. Their Lordships relied upon and observed

as follows in paras 4 and 5 which is fit to be quoted herein

for facility of reference:-

“4. 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 ad interim

stay of the proposed order which had

remained unserved. The learned Single Judge

Page 82 82

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.

5. 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…………..”

12. In the matter of Hare Ram Pandey vs. State of

Bihar & Ors., (2004) 3 SCC 289, effect of delay in

execution of detention order was the principal issue for

consideration before the court. This Court held that the plea

of delay taken by the person who himself was responsible

for the delay having adopted various dilatory tactics

cannot be accepted. In this matter, the question

regarding service of the detention order after expiry of the

Page 83 83

period specified therein was a subject matter of

consideration wherein it was contended that the order was

yet to be executed. This Court held that the grounds like

delay in execution of the order, delay in consideration of the

representation etc. are hypothetical in nature. Where a

person against whom detention order passed was

absconding, plea taken by him or on his behalf that the

period for which detention was directed expired, deserved

to be rejected. While considering this question, it was held

that although the nature and object of the preventive

detention order is anticipatory and non-punitive in nature,

object is to maintain public order and security of State.

This gives jurisdiction to curtail individual liberty by passing

the detention order. Order of detention is passed on the

basis of subjective satisfaction of detaining authority.

13. The legal position was reiterated in the matter of

Dropti Devi and Anr. vs. Union of India & Ors., (2012) 7

SCC 499 wherein one of the questions which arose for

Page 84 84

consideration was whether the detenue could be allowed to

take advantage of his own wrong on the plea that the

maximum period of detention prescribed having expired

and the detenue in the said case having failed to join

investigation despite High Court’s order would justify

questioning of such order. This Court held that the detenue

could not take advantage of his own wrong and challenge

the detention order on the plea that the purpose of

execution of detention order no longer survived as

maximum statutory period of detention would have lapsed

by then.

14. From the ratio of the aforesaid authoritative

pronouncements of the Supreme Court which also includes a

Constitution Bench judgment having a bearing and impact

on the instant matters, the question which emerges is that

if the order of detention is allowed to be challenged on any

ground by not keeping it confined to the five conditions

enumerated in the case of Alka Subhash Gadia except

Page 85 85

the fact that there had been sufficient materials and

justification for passing the order of detention which could

not be gone into for want of its execution, then whether it is

open for the proposed detenue to contend that there is no

live link between the order of detention and the purpose for

which it had been issued at the relevant time. In the light of

ratio of the decisions referred to hereinabove and the law on

preventive detention, it is essentially the sufficiency of

materials relied upon for passing the order of detention

which ought to weigh as to whether the order of detention

was fit to be quashed and set aside and merely the length

of time and liberty to challenge the same at the pre-

execution stage which obviated the execution of the order

of preventive detention cannot be the sole consideration

for holding that the same is fit to be quashed. When a

proposed detenue is allowed to challenge the order of

detention at the pre-execution stage on any ground

whatsoever contending that the order of detention was

Page 86 86

legally unsustainable, the Court will have an occasion to

examine all grounds except sufficiency of the material relied

upon by the detaining authorities in passing the order of

detention which legally is the most important aspect of the

matter but cannot be gone into by the Court as it has been

allowed to be challenged at the pre-execution stage when

the grounds of detention has not even been served on him.

15. Thus, if it is held that howsoever the grounds of

detention might be weighty and sustainable which

persuaded the authorities to pass the order of detention,

the same is fit to be quashed merely due to long lapse of

time specially when the detenue is allowed to challenge the

order of detention even before the order of detention is

served on him, he would clearly be offered with a double-

edged weapon to use to his advantage circumventing the

order of detention. On the one hand, he can challenge the

order of detention at the pre-execution stage on any ground,

evade the detention in the process and subsequently would

Page 87 87

be allowed to raise the plea of long pendency of the

detention order which could not be served and finally seek

its quashing on the plea that it has lost its live link with the

order of detention. This, in my view, would render the very

purpose of preventive detention laws as redundant and

nugatory which cannot be permitted. On the contrary, if the

order of detention is allowed to be served on the proposed

detenue even at a later stage, it would be open for the

proposed detenue to confront the materials or sufficiency

of the material relied upon by the authorities for passing the

order of detention so as to contend that at the relevant time

when the order of detention was passed, the same was

based on non-existent or unsustainable grounds so as to

quash the same. But to hold that the same is fit to be

quashed merely because the same could not be executed

for one reason or the other specially when the proposed

detenue was evading the detention order and indulging in

forum shopping, the laws of preventive detention would

Page 88 88

surely be reduced into a hollow piece of legislation which is

surely not the purpose and object of the Act.

16. Therefore, in my view, the order of detention is

not fit to be quashed and should not be quashed merely due

to long lapse of time but the grounds of detention ought to

be served on him once he gains knowledge that the order of

detention is in existence so as to offer him a plank to

challenge even the grounds of detention after which the

courts will have to examine whether the order of detention

which was passed at the relevant time but could not be

served was based on sufficient material justifying the order

of detention. Remedy to this situation has already been

offered by this Court in the matter of Union of India Vs.

Parasmal Rampuria, (Supra) viz. (1998) 8 SCC 402

wherein it was observed as under:

“ 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

Page 89 89

representation against the said grounds as

required by Article 22(5) of the Constitution of

India…….”

17. The consequence that follows from the above is

that each individual/proposed detenue will have to be served

with the order of detention which had been passed against

them alongwith the grounds and the materials relied upon

by the authorities to pass the order of detention leaving it

open to them to challenge the correctness of the order by

way of a representation before the appropriate Authority or

Court as per procedure prescribed. It is no doubt true that

the materials relied upon at the relevant time would be on

the basis of which the order of detention was passed so as

to hold whether the materials were sufficient and justified or

not but when the correctness of the order of detention is

challenged in a court of law at the pre-execution stage, then

setting aside the order of detention merely on the ground of

long lapse of time might lead to grave consequences which

Page 90 90

would clearly clash with the object and purpose of the

preventive detention laws.

18. Therefore, I am of the view that since this Court

has already held that the order of detention can be

challenged on any ground beyond five conditions even at

the pre-execution stage, it is in the fitness of things that the

materials relied upon by the authorities be served on the

proposed detenues so as to be considered before the

appropriate forum whether the order of detention was fit to

be sustained or not at the relevant time. In the process

what has been the activities of the proposed detenue after

the order of detention was passed against them so as to

quash or sustain the same will have to be considered by the

Authority considering the representation or the Court

examining its sustainability. If the detenues have not

indulged in any illegal nefarious activities giving rise to any

economic offence, subsequently they have also not saddled

with a fresh order of detention. But when the order of

Page 91 91

detention of a specific date relating to the relevant period is

under adjudication, then the materials relied upon by the

authorities at the relevant time alone should weigh with the

courts as to whether the order of detention was justified or

was fit to be quashed as that has been the consistent view

of this Court reflected in the decisions referred to

hereinbefore. It is also not possible to lose sight of the fact

that if the petitioners and the appellants had preferred not

to challenge the order of detention at the pre-execution

stage or had not evaded arrest, the grounds of detention

would have been served on them giving them a chance to

challenge the same but if the petitioners and appellants

have taken recourse to the legal remedy to challenge the

order of detention even before it was executed, it is not

open for them to contend that it should be quashed

because there is no live link between the

existing/subsequent situation and the previous situation

when the order of detention was passed overlooking that

Page 92 92

they succeeded in pre-empting the order by challenging it at

the pre-execution stage never allowing the matter to

proceed so as to examine the most crucial question whether

there were sufficient material or grounds to pass the order

of detention. Subsequent events or conduct in any view

would be a matter of consideration for the authorities before

whom the representation is filed after the grounds are

served on the detenue and cannot be gone into when the

only question raised is regarding the correctness and legality

of the order of detention. The alternative view is bound to

operate as a convenient tool in the hands of the law-

breakers which has not been approved earlier by this Court

in the decisions referred to earlier.

19. A fall out and consequence of the aforesaid

discussion, therefore, in my view, is that the order of

detention cannot be quashed and set aside merely due to

long lapse of time on the specious plea that there is no live

link between the order of detention and the subsequent

Page 93 93

situation. I am, therefore, of the considered opinion that

the order of detention is not fit to be quashed merely due to

long lapse of time specially when the orders of detention

have been allowed to be challenged even at the pre-

execution stage on any ground. It is, therefore, legally

appropriate to serve the order of detention on the

proposed detenues leaving it open to them to challenge the

same after the grounds are served on them so as to

appreciate whether there had been sufficient materials

before the detaining authorities to pass the orders of

detention which were existing at the relevant time and

approve or disapprove the same. In any view, events

subsequent to the passing of the order of detention is

neither before us nor would be relevant at this stage while

adjudging the correctness and legality of the order of

preventive detention when the said orders were passed

specially when this Court had no occasion to peruse the

materials which prompted them to pass the order of

Page 94 94

preventive detention. In fact, there is no material before

this Court even to arrive at a definite finding as to whether

the proposed detenue have indulged in any activity after

the passing of the order of detention nor it is relevant in

my view to take into account the subsequent events while

considering the correctness of the order of detention passed

at the relevant time as the limited issue before this Court

is whether the order of detention passed against the

proposed detenues which were challenged at the pre-

execution stage is fit to be quashed merely due to the

passage of time. It would be equally hypothetical to observe

that in case the orders of detention were served and

approved by the Advisory Board and the same were

challenged before the appropriate court, whether it would

have been open for the appropriate court to consider the

subsequent conduct of the proposed detenue in order to

hold that the order of detention was fit to be quashed.

Nevertheless, when the duty is cast upon this Court at this

Page 95 95

stage merely to consider whether the order of detention

could be allowed to be challenged on other grounds, than

what was delineated in Alka Subhash Gadia’s case as

also the fact whether the order of detention can be

quashed on the ground of long lapse of time, it would not be

legally appropriate in my view to hold that the order of

detention is fit to be quashed merely because there is no

live link between the existing period and situation and the

date on which the order of detention was passed. I find it

hard to ignore the ratio of authoritative pronouncements of

this Court including a Constitution Bench judgment referred

to hereinbefore on the issue holding therein that the long

lapse of time will not be a valid consideration to set aside

the order of detention and may be treated as stare decisis

on the point involved.

20. As a consequence of the analysis in regard to

the validity of the orders of detention challenged by the

petitioners and appellants herein, I deem it correct and

Page 96 96

legally appropriate to hold that the orders of detention are

not fit to be quashed but the same are fit to be served on

the petitioners/appellants leaving it open to them to

challenge the order of detention by taking recourse to the

remedies available to them under the law by way of an

independent proceeding including a representation against

the order of detention before the competent authority which

is the next legal stage after the order of detention is served

on the proposed detenue. Holding it otherwise, in my view,

would result into acceptance of a sordid situation akin to the

adage of “Let be gone be bygone ” which cannot be

swallowed as that would clearly be defeating the very object

and purpose of the preventive detention laws encouraging

the proposed detenue to stay away and twist the arms of

law misusing the provisions to their advantage. All the

matters are consequently fit to be dismissed and are

dismissed leaving it open to the Petitioners/Appellants to

take recourse to remedies available to them in accordance

Page 97 97

with the provisions and procedure established by law after

the grounds of detention are served on them.

…………………… ..J

(Gyan Sudha Misra)

New Delhi

July 16, 2013

Page 98 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION(CRL) NO. 137 OF 2011

Subhash Popatlal Dave …… Petitioner

Vs.

Union of India & Anr. ……

Respondents

WITH

W.P.(CRL) NOS. 35, 138, 220 & 249 OF 2011

AND W.P.(CRL) NO. 14 of 2012

WITH

CRL.A. NO. 932 OF 2013 (@ SLP(CRL) NO. 1909 OF

2011)

CRL.A. NO. 931 OF 2013 (@ SLP(CRL) NO. 1938 OF

2011)

CRL.A. NO. 930 OF 2013 (@ SLP(CRL) NO. 2442 OF

2012)

AND

CRL.A. NOS. 961-962 OF 2013

(@ SLP(CRL) NOS. 2091-2902 OF 2012)

WITH

TRANSFERRED CASE (CRL) NOS.2-3 OF 2013

(@ TRANSFER PETITION(CRL) NOS. 38-39 OF 2013)

J U D G M E N T

Chelameswar, J.

“The task of this Court to maintain a balance

between liberty and authority is never done, because

new conditions today upset the equilibriums of

98

Page 99 yesterday. The seesaw between freedom and power

makes up most of the history of governments, which,

as Bryce points out, on a long view consists of

repeating a painful cycle from anarchy to tyranny

and back again. The Court’s day-to-day task is to

reject as false, claims in the name of civil liberty

which, if granted, would paralyse or impair

authority to defend existence of our society, and to

reject as false claims in the name of security which

would undermine our freedoms and open the way to

oppression…..”

----- Justice Jackson in

American Communications Association, C.I.O. Vs. Charles

T. Douds [339 US 385) [94 Led 925 at 968].

2.In my opinion, it is a statement which every judge of

Constitutional Courts vested with the authority to

adjudicate the legality of any state action challenged on

the ground that such action is inconsistent with civil

liberties guaranteed under the Constitution must always

keep in mind while exercising such authority.

3.The core question in these matters is whether this

Court would be justified in exercising its jurisdiction to

examine the legality of the action of the State in seeking

to execute preventive detention orders (passed long ago)

at the pre execution stage on the claim of each one of the

99

Page 100 petitioners herein that such execution would violate the

fundamental rights of the proposed detenues.

4.The facts are elaborately described in the judgment

of Hon’ble the Chief Justice of India. There is no need to

repeat. Suffice to say that an order of preventive

detention either under the COFEPOSA Act or the National

Security Act is pending unexecuted for varying periods

ranging from 2 to 10 years approximately.

5.Hence, these petitions complaining that permitting

the State to execute such preventive detention orders

would be violative of the fundamental rights under

Articles 14, 19, 21 and 22 of the Constitution guaranteed

to the proposed detenus. It is fervently argued on behalf

of the petitioners that in view of the inordinate delay in

the execution of the impugned detention orders in each of

the cases, live nexus between the purpose sought to be

achieved by the orders of preventive detention and the

cause for such orders of detention stood snapped.

6.As already noticed, in the judgment of Hon’ble the

Chief Justice of India, the essential argument of the State

100

Page 101 in defence is that the proposed detenus (either personally

or through proxy) may not be heard to advance such

arguments in view of the fact that such delay as is

complained of is a consequence of the fact that the

proposed detenus evaded the process of law by

absconding.

7.Personal liberty is the most valuable fundamental

right guaranteed under the Constitution. Deprivation of

such liberty is made impermissible by the Constitution

except as authorised under the provisions of Articles 20,

21 and 22. Deprivation of personal liberty by

incarceration as a penalty for the commission of an

offence is one of the recognised modes by which State can

abridge the fundamental right of personal liberty. Even in

such case the authority of the state is circumscribed by

the limitations contained under Articles 20 and 21 of the

Constitution of India.

8.Article 22 of the Constitution recognises the authority

of the State to preventively detain a person

notwithstanding the fact that such a person is neither

101

Page 102 convicted for the commission of any offence nor

sentenced in accordance with law. The authority of the

State to resort to such preventive detention is more

stringently regulated by the dictates of Article 22. The

nature and scope of the authority to preventively detain a

person, fell for the consideration of this Court on

innumerable occasions.

9.This Court consistently held that preventive

detention “does not partake in any manner of the nature

of punishment” but taken “by way of precaution to

prevent mischief to the community”

1

. Therefore,

1 (a) Khudiram Das v. State of W.B., AIR 1975 SC 550 – “…… 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 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. … 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, having 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 maters susceptible of objective determination and they could not be attended 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 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.”

102

Page 103 necessarily such an action is always based on some

amount of “suspicion or anticipation”. Hence, the

satisfaction of the State to arrive at a conclusion that a

person must be preventively detained is always

subjective. Nonetheless, the legality of such subjective

satisfaction is held by this Court to be amenable to the

judicial scrutiny in exercise of the jurisdiction conferred

under Articles 32 and 226 of the Constitution on certain

limited grounds.

10.One of the grounds on which an order of preventive

detention can be declared invalid is that there is no live

nexus between (1) the material which formed the basis for

the State to record its subjective satisfaction, and (2) the

opinion of the State that it is necessary to preventively

detain a person from acting in any manner prejudicial to

the public interest or security of the State etc. In other

words, the material relied upon by the State for

1(b) In Additional Secretary to the Government of India and Others Vs. Smt. Alka Subhash Gadia

and Another 1992 Supp (1) SCC 496, para 27 reads as -

27.The preventive detention law by its very nature has always posed a challenge before the cours

in a democratic society such as ours to reconcile the liberty of the individual with the allegedly

threatened interests of the society and the security of the State particularly during times of peace. It

is as much a deprivation of liberty of an individual as the punitive detention. Worse still, unlike the

latter, it is resorted to prevent the possible misconduct in future, though the prognosis of the

conduct is based on the past record of the individual. The prognosis further is the result of the

subjective satisfaction of the detaining authority which is not justiciable. The risk to the liberty of

the individual under our detention law as it exists is all the more aggravated because the authority

entrusted with the power to detain is not directly accountable to the legislature and the people.

103

Page 104 preventively detaining a person is so stale that the State

could not have rationally come to a conclusion that it is

necessary to detain a person without a charge or trial.

11.The question before us is not whether the detention

order impugned in these matters is illegal on the day of

their making on any of the grounds known to law. Whether

the execution of the preventive detention order (which

might otherwise be valid) after long lapse of time

reckoned from the date of the detention order would

render the detention order itself illegal or would render

the execution of the detention order illegal.

12.It is the settled position of law declared by this Court

in a number of cases that absence of live nexus between

material forming the basis and the satisfaction (opinion) of

the State that it is necessary to preventively detain a

person is definitely fatal to the preventive detention order.

All those cases where Courts have quashed the orders of

preventive detention on the theory of lack of ‘live nexus’

are cases where the detention orders were executed but

104

Page 105 not cases of non-execution of the detention orders for a

long lapse of time after such orders came to be passed.

13.Whether the test of live nexus developed by this

Court in the context of examining the legality of the order

of preventive detention can be automatically applied to

the question of the legality of the execution of the

preventive detention orders where there is a considerable

time gap between the passing of the order of preventive

detention and its execution is the real question involved in

these matters. To answer the question, we must analyse

the probable reason for the delay in executing the

preventive detention orders.

14.There could be two reasons which may lead to a

situation by which the preventive detention order passed

by the competent authorities under the various

enactments could remain unexecuted, (1) the absconding

of the proposed detenu from the process of law (2) the

apathy of the authorities responsible for the

implementation of the preventive detention orders.

105

Page 106 15.The legislature was conscious of the fact that it can

happen in some cases that the execution of the preventive

detention order could be scuttled by the proposed

detention either by concealing himself or absconding from

the process of law. Therefore, specific provisions are

made in this regard under various enactments dealing

with the preventive detention. For example, Section 7 of

the COFEPOSA Act recognises such a possibility and

stipulates as follows:-

“7. Powers in relation to absconding persons – (1) If the

appropriate Government has reason to believe that a person in

respect of whom a detention order has been made has

absconded or is concealing himself so that the order cannot be

executed, the Government may –

(a) make a report in writing of the fact to a Metropolitan

Magistrate or a Magistrate of the first class having

jurisdiction in the place where the said person

ordinarily resides; and thereupon the provisions of

sections 82, 83, 84 & 85 of the Code of Criminal

Procedure, 1973 (2 of 1974), shall apply in respect

of the said person and his property as if the order

directing that he be detained were a warrant issued

by the Magistrate;

(b)by order notified in the Official Gazette direct the said

person to appear before such officer, at such place

and within such period as may be specified in the

order; and if the said person fails to comply with

such direction, he shall, unless he proves that it

was not possible for him to comply therewith and

that he had, within the period specified in the

order, informed the officer mentioned in the order

of the reason which rendered compliance

106

Page 107 therewith impossible and of his whereabouts, be

punishable with imprisonment for a term which

may extend to one year or with fine or with both.

(2)Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 of 1974), every

offence under clause (b) of sub-section (1) shall be

cognizable.”

16.It can be seen from the said section that in a case

where proposed detenu is absconding or concealing

himself, the Government may report the matter to the

Magistrate having jurisdiction over the place where the

proposed detenu ordinarily resides. On making of such

report by the Government, the provisions of Sections 82,

83, 84 and 85 of the Code of Criminal Procedure apply to

the proposed detenu and his property, as if the order of

preventive detention is a warrant issued by the Magistrate

under the provisions of the Code of Criminal Procedure.

17.In substance, the property of the proposed detenu

could be attached and perhaps even be confiscated in an

appropriate case.

18.Apart from that the State can also by notification of

official gazette direct proposed detenu to appear before

107

Page 108 an officer specified in the said notification at such place

and time. Failure to comply with such notified direction on

the part of the proposed detenu - without a reasonable

cause - is made an offence punishable either with

imprisonment for a term extending upto one year or with

fine or both.

19.If a preventive detention order is to be quashed or

declared illegal merely on the ground that the order

remained unexecuted for a long period without examining

the reasons for such non-execution, I am afraid that the

legislative intention contained in provisions such as

Section 7(b) of the COFEPOSA Act would be rendered

wholly nugatory. Parliament declared by such provision

that an (recalcitrant) individual against whom an order of

preventive detention is issued is under legal obligation to

appear before the notified authority once a notification

contemplated under Section 7(b) of COFEPOSA Act is

issued. We have already noticed that failure to appear

without a reasonable excuse would be an offence and

render the defaulter liable for a punishment of

imprisonment. Holding that the preventive detention

108

Page 109 orders are themselves rendered illegal, on the basis of the

live nexus theory (which, in my opinion, is valid only for

examining the legality of the order, viz-a-viz the date on

which the order is passed) would not only exonerate the

person from the preventive detention order but also result

in granting impunity to such person from the subsequent

offence committed by him under the provisions such as

Section 7(b) of the COFEPOSA Act.

20.This question fell for consideration of this Court on

more than one occasion. In Bhawarlal Ganeshmalji Vs.

State of Tamil Nadu & Anr., (1979) 1 SCC 463, this Court

speaking through Justice O. Chinnappa Reddy held –

“…… where the delay is not only adequately

explained but is found to be the result of the

recalcitrant or refractory conduct of the detenu in

evading arrest, there is warrant to consider the

‘link’ not snapped but strengthened.”

It was a case where the detenu evaded the arrest for a

priod of more than 3 years but eventually surrendered

himself before the Commissioner of Police, Madras and

then challenged the order of detention. One of the

submissions before this Court was that the detention order

109

Page 110 must be considered to have lapsed or ceased to be

effective in the absence of the fresh application of mind of

the detaining authority to the question of continuing

necessity for preventive detention. This Court rejected

the submission.

21.The said principle was followed in M. Ahamedkutty

Vs. Union of India & Anr., (1990) 2 SCC 1.

22.Once again in Union of India & Ors. Vs. Arvind

Shergill & Anr., (2000) 7 SCC 601, this Court held that –

“we do not think that it would be appropriate to state

that merely by passage of time the nexus between the

object for which the husband of the respondent is

sought to be detained and the circumstances in which

he was ordered to be detained has snapped”.

It was a case where the detention order was challenged at

the pre-execution stage before the High Court and the

High Court had stayed the execution of the order and the

matter was pending for some time. After losing the

matter in the High Court, the proposed detenu approached

this Court without surrendering and advanced the

argument that the live nexus snapped in view of the delay

110

Page 111 in executing the preventive detention order. The

submission was rejected.

23.Therefore, I am of the opinion that those who have

evaded the process of law shall not be heard by this Court

to say that their fundamental rights are in jeopardy. At

least, in all those cases, where proceedings such as the

one contemplated under Section 7 of the COFEPOSA Act

were initiated consequent upon absconding of the

proposed detenu, the challenge to the detention orders on

the live nexus theory is impermissible. Permitting such an

argument would amount to enabling the law breaker to

take advantage of his own conduct which is contrary to

law.

24.Even in those cases where action such as the one

contemplated under Section 7 of the COFEPOSA Act is not

initiated, the same may not be the only consideration for

holding the order of preventive detention illegal. This

Court in Shafiq Ahmad Vs. District Magistrate, Meerut,

(1989) 4 SCC 556 held so and the principle was followed

subsequently in M. Ahamedkutty Vs. Union of India & Anr.,

111

Page 112 (1990) 2 SCC 1, wherein this Court opined that in such

cases, the surrounding circumstances must be examined

2

.

25.In both Shafiq Ahmad and Ahamedkutty’s cases,

these questions were examined after the execution of the

detention order. Permitting an absconder to raise such

questions at the pre-detention stage, I am afraid would

render the jurisdiction of this Court a heaven for

characters of doubtful respect for law.

26.This Court in the case of Alka Subhash Gadia (supra),

emphatically asserted that - “it is not correct to say that

the courts have no power to entertain grievances against

2 “14. In Shafiq Ahmad v. District Magistrate, Meerut relied on by appellant, it has

been clearly held that what amounts to unreasonable delay depends on facts and

circumstances of each case. Where reason for the delay was stated to be abscondence

of the detenu, mere failure on the part of the authorities to take action under Section 7

of the National Security Act by itself was not sufficient to vitiate the order in view of

the fact that the police force remained extremely busy in tackling the serious law and

order problem. However, it was not accepted as a proper explanation for the delay in

arresting the detenu. In that case the alleged incidents were on April 2/3/9, 1988. The

detention order was passed on April 15, 1988 and the detenu was arrested on October

2, 1988. The submission was that there was inordinate delay in arresting the petitioner

pursuant to the order and that it indicated that the order was not based on a bona fide

and genuine belief that the action or conduct of the petitioner were such that the same

were prejudicial to the maintenance of public order. Sabyasachi Mukharji, J., as my

Lord the Chief Justice then was, observed that whether there was unreasonable delay

or not would depend upon the facts and circumstances of a particular situation and if

in a situation the person concerned was not available and could not be served, then the

mere fact that the action under Section 7 of the Act had not been taken, would not be

a ground for holding that the detention order was bad. Failure to take action even if

there was no scope for action under Section 7 of the COFEPOSA Act, would not by

itself be decisive or determinative of the question whether there was undue delay in

serving the order of detention.”

112

Page 113 detention order prior to its execution” This Court also

took note of the fact that such an inquiry had indeed been

undertaken by the Courts in a very limited number of

cases and in circumstances glaringly untenable at the pre-

execution stage.

3

27.The question whether the five circumstances

specified in Alka Subhash Gadia case (supra) are

exhaustive of the grounds on which a pre-execution

scrutiny of the legality of preventive detention order can

be undertaken was considered by us earlier in the instant

case. We held that the grounds are not exhaustive.

4

But

that does not persuade me to hold that such a scrutiny

ought to be undertaken with reference to the cases of

those who evaded the process of law.

3 ..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 the 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….

4 (2012) 7 SCC 533

113

Page 114 28.For all the above mentioned reasons, I regret my

inability to agree with the opinion delivered by Hon’ble the

Chief Justice of India. I dismiss all the matters.

…………………………… J.

( J. Chelameswar )

New Delhi;

July 16, 2013.

114

Page 115 115

Page 116 116

ITEM NO.1B COURT NO.1 SECTION X

[FOR JUDGMENT]

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

WRIT PETITION (CRL.) NO(s). 137 OF 2011

SUBHASH POPATLAL DAVE Petitioner(s)

VERSUS

UNION OF INDIA & ANR. Respondent(s)

WITH

W.P(CRL.) NO. 138 of 2011

W.P(CRL.) NO. 35 of 2011

Crl.A.No.932/2013 arising from SLP(Crl) NO. 1909 of 2011

Crl.A.No.931/2013 arising from SLP(Crl) NO. 1938 of 2011

W.P(CRL.) NO. 220 of 2011

W.P(CRL.) NO. 249 of 2011

W.P(CRL.) NO. 14 of 2012

Crl.A.No.930/2013 arising from SLP(Crl) NO. 2442 of 2012

Crl.A.Nos.961-962/2013 arising from SLP(Crl) NOs.2091-2092

of 2012

T.C.(Crl.)Nos.2-3/2013 arising from T.P.(CRL) NOs.38-39 of

2013

Date: 16/07/2013 These Petitions were called on for

JUDGMENT today.

Page 117 117

For Petitioner(s)

Mr. Ravindra Keshavrao Adsure, AOR

Mr. D. Mahesh Babu, AOR

Mr. Rakesh Dahiya, AOR

Mr. Nikhil Jain, AOR

For Respondent(s) Mr. P.P. Malhotra, ASG.

Ms. Ranjana Narayan, Adv.

Mr. Chetan Chawla, Adv.

Mr. B. Krishna Prasad, AOR

Ms. Asha Gopalan Nair, AOR

Mr. Arvind Kumar Sharma, AOR

Mr. Gopal Balwant Sathe, AOR

Dr. Kailash chand, AOR

Hon'ble the Chief Justice, Hon'ble

Mrs. Justice Gyan Sudha Misra and Hon'ble

Mr. Justice J. Chelameswar pronounced

their separate judgments. Hon'ble the

Chief Justice pronounced His judgment,

allowing the Writ Petitions, being 137,

35, 138, 249, all of 2011 and after

granting leave in Special Leave

Petitions, allowing appeals, being

Criminal Appeals @ Special Leave

Petitions (Crl.) Nos. 1909 of 2011, 1938

of 2011, 2091-2092 of 2012 and 2442 of

2012 and disallowing at this stage, being

pre-mature the following matters, being,

Page 118 118

Transferred Cases @ T.P.(Crl.)Nos.38-39

of 2013, W.P.(Crl.)No.220 of 2011 and

W.P.(Crl.)No.14 of 2012.

Hon'ble Mrs. Justice Gyan Sudha

Misra and Hon'ble Mr. Justice J.

Chelameswar, while regretting inability

to agree with the judgment of Hon'ble the

Chief Justice, pronounced separate but

concurring judgments, dismissing all the

matters, the writ petitions, appeals and

the transferred case.

(Sheetal Dhingra) (Juginder Kaur)

AR-cum-PS Assistant Registrar

[Signed three Reportable Judgments are placed on the file]