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CASE NO.:

Appeal (crl.) 223 of 2004

PETITIONER:

Union of India

RESPONDENT:

Amrit Lal Manchanda and Anr.

DATE OF JUDGMENT: 16/02/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

JUDGMENT

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

WITH

CRIMINAL APPEAL NO.224/2004

(Arising out of SLP (Crl.)No.3902/2003)

ARIJIT PASAYAT, J.

Leave granted.

In both these two appeals the Union of India questions

legality of the judgment rendered by the Punjab and Haryana

High Court quashing the order of detention passed by the

concerned authority under Section 3(1) of the Conservation

of Foreign Exchange and Prevention of Smuggling Activities

Act, 1974 (in short the 'COFEPOSA').

A brief reference to the factual aspects which is

almost undisputed would suffice.

Since the points for adjudication are common to both

the appeals the factual position in SLP(Crl.)No.3901/2003 is

noted for convenience as the only difference between this

case and the other case relates to the dates. The order of

detention was passed under Section 3(1) of COFEPOSA on

31.10.2001. The respondent filed a writ petition before the

Punjab and Haryana High Court on 20.12.2001 and on

21.12.2001 an order staying operation of the detention order

was passed. On 31.5.2002 the High Court decided that it had

territorial jurisdiction to deal with the matter, but

dismissed the writ petition. An application for review was

filed on the ground that though it was noted that the writ

petition was dismissed, in fact the various points urged in

support of the writ application were not considered. The

High Court issued notice on the review petition and pending

consideration stayed the operation of detention order. When

the matter was heard afresh before the High Court it appears

that only one point was urged i.e. passage of time between

the date of the detention order and the date on which the

High Court had taken up the writ petition for consideration.

Relying on a decision of this Court in Sunil Fulchand Shah

v. Union of India and Ors. (2000 (3) SCC 409) the High Court

held the order of detention dated 31.10.2001 to be

unsustainable. However, it permitted the concerned authority

to examine the matter and pass a fresh order if necessary

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and the circumstances so warrant.

Learned Additional Solicitor General submitted that the

decision in Sunil Fulchand's case (supra) had no application

to the present case. In that case the question adjudicated

was whether the period during which the detenu is on parole

can be adjusted from the period of detention indicated in

the detention order. While dealing with that issue the Court

observed that where there is considerable gap of time, the

desirability of sending any detenu to custody has to be

considered in the background of the issue as to whether a

live link for preventive detention still existed. That had

nothing to do with a challenge to the order of detention

before its execution.

Mr. Gopal Subramaniam, learned senior counsel appearing

for the respondent submitted that the writ petitioner was

not in custody pursuant to the order of stay passed by the

High Court. The stay order can be treated at par with an

order of parole. In any event, a live link has to be

established to detain a person in custody by way of

preventive detention. The liberty of a person is sacrosanct

and it should not be affected except on grounds legally

available to the detaining authority.

With reference to a decision of this Court in Union of

India and Ors. V. Muneesh Suneja (2001 (3) SCC 92) it is

submitted that the detaining authority has to be satisfied

afresh whether the detention was still necessary. It was

submitted that liberty was given to the detaining authority

and, therefore, it would not be proper to interfere. It is

also pointed out that in the case of four similarly situated

persons relating to the alleged offending acts, detention

orders have been revoked in respect of two and in respect of

two others, the High Court has quashed the orders of

detention and no appeal has been filed.

So far as these four persons are concerned, learned ASG

submitted that their cases were not considered at the pre-

execution stage. All the four persons were in custody and

their cases were considered by the Advisory Board or the

High Court as the case may be. They do not stand at par with

the present respondents.

Before dealing with rival submissions, it would be

appropriate to deal with the purpose and intent of

preventive detention. Preventive detention is an

anticipatory measure and does not relate to an offence,

while the criminal proceedings are to punish a person for an

offence committed by him. They are not parallel proceedings.

The object of the law of preventive detention is not

punitive but only preventive. It is resorted to when the

Executive is convinced that such detention is necessary in

order to prevent the person detained from acting in a manner

prejudicial to certain objects which are specified by the

concerned law. The action of Executive in detaining a person

being only precautionary, normally the matter has

necessarily to be left to the discretion of the executive

authority. It is not practicable to lay down objective rules

of conduct in an exhaustive manner, the failure to conform

to which should lead to detention. The satisfaction of the

Detaining Authority, therefore, is considered to be of

primary importance, with great latitude in the exercise of

its discretion. The Detaining Authority may act on any

material and on any information that it may have before it.

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Such material and information may merely afford basis for a

sufficiently strong suspicion to take action, but may not

satisfy the tests of legal proof on which alone a conviction

for offence will be tenable. The compulsions of the

primordial need to maintain order in society without which

the enjoyment of all rights, including the right to personal

liberty of citizens would loose all their meanings provide

the justification for the laws of prevention detention. Laws

that provide for preventive detention posit that an

individual's conduct prejudicial to the maintenance of

public order or to the security of State or corroding

financial base provides grounds for satisfaction for a

reasonable prognostication of possible future manifestations

of similar propensities on the part of the offender. This

jurisdiction has at times been even called a jurisdiction of

suspicion. The compulsions of the very preservation of the

values of freedom of democratic society and of social order

might compel a curtailment for individual liberty. "To,

lose our country by a scrupulous adherence to the written

law" said Thomas Jefferson "would be to lose the law

itself, with life, liberty and all those who are enjoying

with us, thus absurdly sacrificing the end to the needs".

This, no doubt, is the theoretical jurisdictional

justification for the law enabling prevention detention. But

the actual manner of administration of the law of preventive

detention is of utmost importance. The law has to be

justified by striking the right balance between individual

liberty on the one hand and the needs of an orderly society

on the other.

The question whether the detenu or any one on his

behalf is entitled to challenge the detention order without

the detenu submitting or surrendering to it has been

examined by this Court on various occasions. One of the

leading judgments on the subject is Additional Secretary to

the Govt. of India and Ors. v. Smt. Alka Subhash Gadia and

Anr. case ((1992 Supp (1) SCC 496). In para 12 of the said

judgment, it was observed by this Court as under:

"12. This is not to say that the

jurisdiction of the High Court and the

Supreme Court under Articles 226 and 32

respectively has no role to play once the

detention \026punitive or preventive- is shown

to have been made under the law so made for

the purpose. This is to point out the

limitations, which the High Court and the

Supreme Court have to observe while

exercising their respective jurisdiction in

such cases. These limitations are normal and

well known, and are self-imposed as a matter

of prudence, propriety, policy and practice

and are observed while dealing with cases

under all laws. Though the Constitution does

not place any restriction on these powers,

the judicial decision have evolved them over

a period of years taking into consideration

the nature of the legislation or of the

order or decision complained of, the need to

balance the rights and interests of the

individual as against those of the society,

the circumstances under which and the

persons by whom the jurisdiction is invoked,

the nature of relief sought, etc. To

illustrate these limitations, (i) in the

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exercise of their discretionary jurisdiction

the High Court and the Supreme Court do not,

as Courts of appeal or revision, correct

mere errors of law or of facts, (ii) the

resort to the said jurisdiction is not

permitted as an alternative remedy for

relief which may be obtained by suit or

other mode prescribed by statute. Where it

is open to the aggrieved person to move

another Tribunal or even itself in another

jurisdiction for obtaining redress in the

manner provided in the statute, the Court

does not, by exercising the writ

jurisdiction, permit the machinery created

by the statute to be by-passed; (iii) it

does not generally enter upon the

determination of questions which demand an

elaborate examination of evidence to

establish the right to enforce which the

writ is claimed; (iv) it does not interfere

on the merits with the determination of the

issues made by the authority invested with

statutory power, particularly when they

relate to matters calling for expertise,

unless there are exceptional circumstances

calling for judicial intervention, such as,

where the determination is mala fide or is

prompted by the extraneous considerations or

is made in contravention of the principles

of natural justice of any constitutional

provision, (v) the Court may also intervene

where (a) the authority acting under the

concerned law does not have the requisite

authority or the order which is purported to

have been passed under the law is not

warranted or is in breach of the provisions

of the concerned law or the person against

whom the action is taken is not the person

against whom the order is directed, or (b)

when the authority has exceeded its power or

jurisdiction or has failed or refused to

exercise jurisdiction vested in it; or (c)

where the authority has not applied its mind

at all or has exercised its power

dishonestly or for an improper purpose; (vi)

where the Court cannot grant a final relief,

the Court does not entertain petition only

for giving interim relief. If the Court is

of opinion, that there is no other

convenient or efficacious remedy open to the

petitioner, it will proceed to investigate

the case on its merit and if the Court finds

that there is an infringement of the

petitioner's legal rights, it will grant

final relief but will not dispose of the

petition only by granting interim relief

(vii) where the satisfaction of the

authority is subjective, the Court

intervenes when the authority has acted

under the dictates of another body or when

the conclusion is arrived at by the

application of a wrong test or

misconstruction of a statute or it is not

based on material which is of a rationally

probative value and relevant to the subject

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matter in respect of which the authority is

to satisfy itself. If again the satisfaction

is arrived at by taking into consideration

material, which the authority properly could

not, or by omitting to consider matters,

which it sought to have, the Court

interferes with the resultant order. (viii)

In proper cases the Court also intervenes

when some legal or fundamental right of the

individual is seriously threatened, though

not actually invaded."

In Sayed Taher Bawamiya v. Joint Secretary to the

Govt. of India and Ors. (2000 (8) SCC 630), it was observed

by this Court as follows:

"This Court in Alka Subhash's case

(supra) was also concerned with a matter

where the detention order had not been

served, but the High Court had

entertained the petition under Article

226 of the Constitution. This Court held

that equitable jurisdiction under

Article 226 and Article 32 which is

discretionary in nature would not be

exercised in a case where the proposed

detenu successfully evades the service

of the order. The Court, however, noted

that the Courts have the necessary power

in appropriate case to interfere with

the detention order at the pre-execution

stage but the scope for interference is

very limited. It was held that the

Courts will interfere at the pre-

execution stage with the detention

orders only after they are prima facie

satisfied:

(i) that the impugned order is not

passed under the Act which it is

purported to have been passed.

(ii) that it is sought to be

executed against a wrong person.

(iii)that it is passed for a wrong

purpose.

(iv)that it is passed on vague,

extraneous and irrelevant grounds,

or

(v)that the authority which passed

it had no authority to do so.

As we see it, the present case does not

fall under any of the aforesaid five

exceptions for the Court to interfere.

It was contended that these exceptions

are not exhaustive. We are unable to

agree with this submission. Alka

Subhash's case (supra) shows that it is

only in these five types of instances

that the Court may exercise its

discretionary jurisdiction under

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Article 226 or Article 32 at the pre-

execution stage. The appellant had

sought to contend that the order which

was passed was vague, extraneous and on

irrelevant grounds but there is no

material for making such an averment

for the simple reason that the order of

detention and the grounds on which the

said order is passed has not been

placed on record inasmuch as the order

has not yet been executed. The

appellant does not have a copy on the

same, and therefore, it is not open to

the appellant to contend that the non-

existent order was passed on vague,

extraneous or on irrelevant grounds".

This Court's decision in Union of India and Ors. v.

Parasmal Rampuria (1998 (8) SCC 402) throws considerable

light as to what would be the proper course for a person to

adopt when he seeks to challenge an order of detention on

the available grounds like delayed execution of detention

order, delay in consideration of the representation and the

like. These questions are really hypothetical in nature when

the order of detention has not been executed at all and

challenge is made at pre-execution stage. It was observed as

under:

"In our view, a very unusual order

seems to have been passed in a pending

appeal by the Division Bench of the

High Court. It is challenged by the

Union of India in these appeals. A

detention order under Section 3(1) of

the COFEPOSA Act was passed by the

authorities on 13.9.1996 against the

respondent. The respondent before

surrendering filed a writ petition in

the High Court on 23.10.1996 and

obtained an interim stay of the

proposed order, which had remained un-

served. The learned Single Judge after

hearing the parties vacated the ad

interim relief. Thereafter, the

respondent went in appeal before the

Division Bench and again obtained ad

interim relief on 10.1.1997 which was

extended from time to time. The writ

appeal has not been still disposed of.

When the writ petition was filed,

the respondent had not surrendered.

Under these circumstances, the proper

order which was required to be passed

was to call upon the respondent first

to surrender pursuant to the detention

order and then to have all his

grievances examined on merits after he

had an opportunity to study the grounds

of detention and to make his

representation against the said grounds

as required by Article 22(5) of the

Constitution."

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

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Bench of this Court observed that a person may try to

abscond and thereafter take a stand that period for which

detention was directed is over and, therefore, order of

detention is infructuous. It was clearly held that the same

plea even if raised deserved to be rejected as without

substance. It should all the more be so when the detenu

stalled the service of the order and/or detention in custody

by obtaining orders of Court. In fact, in Sayed Taher's case

(supra) the fact position shows that 16 years had elapsed

yet this Court rejected the plea that the order had become

stale.

These aspects were highlighted recently in Hare Ram

Pandey v. State of Bihar and Ors. (2003 (10) JT 114).

Cases involving challenges to orders of detention

before and after execution of the order stand on different

footings. Courts should not place reliance on decisions

without discussing as to how the factual situation fits in

with the fact situation of the decision on which reliance is

placed. Observations of Courts are neither to be read as

Euclid's theorems nor as provisions of the statute and that

too taken out of their context. These observations must be

read in the context in which they appear to have been

stated. Judgments of courts are not to be construed as

statutes. To interpret words, phrases and provisions of a

statute, it may become necessary for judges to embark into

lengthy discussions but the discussion is meant to explain

and not to define. Judges interpret statutes, they do not

interpret judgments. They interpret words of statutes; their

words are not to be interpreted as statutes. In London

Graving Dock Co. Ltd. V. Horton (1951 AC 737 at p.761), Lord

Mac Dermot observed:

"The matter cannot, of course, be

settled merely by treating the ipsissima

vertra of Willes, J as though they were

part of an Act of Parliament and

applying the rules of interpretation

appropriate thereto. This is not to

detract from the great weight to be

given to the language actually used by

that most distinguished judge."

In Home Office v. Dorset Yacht Co. (1970 (2) All ER

294) Lord Reid said, "Lord Atkin's speech.....is not to be

treated as if it was a statute definition It will require

qualification in new circumstances." Megarry, J in (1971) 1

WLR 1062 observed: "One must not, of course, construe even

a reserved judgment of even Russell L.J. as if it were an

Act of Parliament." And, in Herrington v. British Railways

Board (1972 (2) WLR 537) Lord Morris said:

"There is always peril in treating

the words of a speech or judgment as

though they are words in a legislative

enactment, and it is to be remembered

that judicial utterances made in the

setting of the facts of a particular

case."

Circumstantial flexibility, one additional or different

fact may make a world of difference between conclusions in

two cases. Disposal of cases by blindly placing reliance on

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a decision is not proper.

The following words of Lord Denning in the matter of

applying precedents have become locus classicus:

"Each case depends on its own

facts and a close similarity between

one case and another is not enough

because even a single significant

detail may alter the entire aspect, in

deciding such cases, one should avid

the temptation to decide cases (as

said by Cordozo) by matching the

colour of one case against the colour

of another. To decide therefore, on

which side of the line a case falls,

the broad resemblance to another case

is not at all decisive."

*** *** ***

"Precedent should be followed

only so far as it marks the path of

justice, but you must cut the dead wood

and trim off the side branches else you

will find yourself lost in thickets and

branches. My plea is to keep the path

to justice clear of obstructions which

could impede it."

The High Court does not appear to have considered the

case in the background of whether any relief was available

to the writ petitioner even before the order of detention

was executed. The decision relied upon by it was not

strictly applicable. Merely because the High Court had

granted stay of the order of detention, the respondent

cannot take advantage of the order of stay passed by the

High Court to contend that there is a passage of time. The

petitioner cannot be allowed to have an unfair advantage and

double benefit of his own action, which delayed the

execution of the detention order. In fact in Sayed Taher

Bawamiya's case (supra) the time gap was nearly 16 years.

The inevitable conclusion therefore is that the High Court

was not justified in quashing the order of detention. The

writ petition filed by the respondent is dismissed. It is

open to the respondent to surrender to custody as was

observed in Parasmal Rampuria's case (supra) and take such

plea as is available in law. The reliance sought to be

placed on the fate of proceedings taken against others is

wholly inappropriate. The individual role, behavioral

attitude and prognostic proposensthis have to be considered,

person-wise, and no advantage can be allowed to be gained by

the petitioners in these cases based on considerations said

to have been made as to the role of the others and that too

as a matter post detention exercise undertaken so far as

they are concerned. The appeal is allowed. The order of the

High Court is set aside and the writ petition filed before

the High Court shall stand dismissed.

SLP(Crl.)No. 3902/2003

The conclusions in SLP(Crl.)No.3901/2003 shall be

equally applicable to this case in view of the fact that the

position in law is the same on the similar fact situation of

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this case as well, though the dates are different.

The appeal is allowed. The order of the High Court is

set aside and the writ petition filed in the High Court

shall stand dismissed.