Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 25
CASE NO.:
Appeal (crl.) 417 of 2008
PETITIONER:
STATE OF MAHARASHTRA & ORS
RESPONDENT:
BHAURAO PUNJABRAO GAWANDE
DATE OF JUDGMENT: 03/03/2008
BENCH:
C.K. THAKKER & ALTAMAS KABIR
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO 417 OF 2008
ARISING OUT OF
SPECIAL LEAVE PETITION (CRL) NO. 583 OF 2007
C.K. THAKKER, J.
1. Leave granted.
2. The present appeal is filed by the
State of Maharashtra and others against the
sole respondent (original petitioner) against
the judgment and order passed by the High Court
of Judicature at Bombay (Nagpur Bench) on
October 17, 2006 in Writ Petition No. 372 of
2006. By the impugned order, the High Court
(partly) allowed the petition filed by the
detenu-writ petitioner and set aside the order
of detention dated July 27, 2006 passed by the
Commissioner of Police (Nagpur City) under the
Prevention of Black Marketing and Maintenance
of Supplies of Essential Commodities Act, 1980.
FACTUAL MATRIX
3. The case of the appellants is that one
Bhaurao Punjabrao Gawande (detenu) was running
a business of transportation of petroleum
products and had fleet of tankers for carrying
on the said occupation. He was indulging in
illegal purchase and sale of blue kerosene oil
in black market since last five to six years.
Certain cases were also registered against the
said Bhaurao under the Essential Commodities
Act, 1955 (hereinafter referred to as ’1955
Act’). In view of continuous activities of
Bhaurao in black-marketing of essential
commodity (Kerosene), the Commissioner of
Police (appellant No.2 herein), in exercise of
power conferred on him by sub-section (1) read
with Clause (b) of sub-section (2) of the
Prevention of Black Marketing and Maintenance
of Supplies of Essential Commodities Act, 1980
(hereinafter referred to as ’the Act’) directed
that the said Bhaurao be detained. Grounds of
detention were sought to be served to the
detenu on the same day.
4. According to the appellants, in
accordance with sub-section (3) of Section 3 of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 25
the Act, the order of detention passed by the
Commissioner of Police was approved by the
State Government. The detenu somehow came to
know about the order of detention being passed
again him and absconded himself. He, therefore,
could not be detained, nor served with the
order or grounds of detention in support of the
order.
WRIT PETITION
5. The detenu, without submitting to the
order of detention and surrendering, filed Writ
Petition No. 372 of 2006 in the High Court of
Bombay (Nagpur Bench) for an appropriate writ,
direction or order quashing and setting aside
the order of detention dated July 27, 2006
being illegal, unwarranted and vitiated by mala
fide. Other reliefs were also sought.
COUNTER AFFIDAVIT
6. An affidavit in reply was filed by the
Detaining Authority, inter alia, contending
that the petition filed by the detenu was not
maintainable at law. The detenu got the
information about the order of detention,
absconded himself and the order of detention
could not be served upon him. The order was,
therefore, affixed at a conspicuous place at
the residence of the detenu on July 30, 2006
and a panchanama was drawn by the Police
Inspector of Sakkardara Police Station, Nagpur.
Since the detenu was not available, grounds of
detention along with relevant documents also
could not be served upon him. It was stated
that the order of detention was approved by the
State Government. Moreover, the entire
proceedings of detention were submitted to the
Advisory Board constituted under Section 10 of
the Act as required by law. The Government
decided the period of detention only after the
opinion of the Advisory Board under Section 12
of the Act.
7. On merits, it was contended on behalf
of the Detaining Authority that the detenu was
indulging in black marketing of kerosene oil
which was an ’essential commodity’ and several
cases had been registered against him. It was
also stated that the detenu had executed a bond
under the Code of Criminal Procedure, 1973 for
good behaviour. In spite of all these steps,
the detenu continued to indulge in black
marketing activities of essential commodity and
the Detaining Authority was satisfied that
"with a view to preventing him from acting in
any manner prejudicial to the maintenance of
supplies of essential commodities to the
community", it was necessary to detain him and
accordingly the order was passed. It was,
therefore, submitted that the petition was
liable to be dismissed, particularly when the
detenu absconded and the order of detention
along with grounds of detention and other
documents could not be personally served and
could not be executed.
HIGH COURT JUDGMENT
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 25
8. The High Court, by the impugned order,
held that the detenu was not entitled to know
the grounds on which the order of detention had
been passed, unless he surrendered. The Court,
however, proceeded to state that it perused the
grounds of detention with a view to satisfy
itself about the legality of the order of
detention. The Court noted that the authorities
made the record available to the Court and the
Court had ’carefully’ examined it. The Court
then concluded;
"We find that the present petition
can be entertained at pre-
execution stage".
9. The High Court considered the relevant
provisions of the Act as also the Maharashtra
Kerosene Dealers’ Licensing Order, 1966 and the
Kerosene (Restriction on Use and Fixation of
Ceiling Price) Order, 1993. It observed that if
the cases instituted against the detenu were
taken into consideration by the Detaining
Authority, it could not be said that the
Detaining Authority could not have reached
’subjective satisfaction’ on that basis and as
such the order could not be challenged. The
High Court also conceded that normally, a Court
would not interfere with the order of detention
at pre-execution stage. It, however, held that
the present case was covered by one of the
exceptions laid down in Addl. Secretary to the
Government of India & Ors. v. Smt. Alka Subhash
Gadia & Anr., 1992 Supp (1) SCC 496 and hence
the petition was maintainable and the detenu
was entitled to relief. The High Court
accordingly set aside the order of detention.
The legality of said order is questioned by the
Authorities in the present appeal.
PREVIOUS ORDERS
10. On February 12, 2007, when the matter
was placed for admission hearing, notice was
issued and was made returnable within three
weeks. On August 13, 2007, four weeks time was
sought by the detenu for filing counter
affidavit. The Court, however, passed the
following order;
"The matter relates to grant of
relief by the High Court under Article
226 of the Constitution at pre-arrest
stage. This Court had issued notice on
February 12, 2007.
On the facts and in the
circumstances of the case, in our
opinion, we should not grant four
weeks’ time as prayed for. Two weeks’
time is granted, as a last chance, for
filing counter affidavit.
List thereafter".
11. Affidavit-in-reply was thereafter
filed. On December 13, 2007, the Registry was
directed to list the matter for final hearing
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 25
in the first week of February, 2008 on a non-
miscellaneous day and that is how the matter is
before us.
12. We have heard learned counsel for the
parties.
APPELLANTS’ SUBMISSIONS
13. The learned counsel for the appellants
strenuously contended that the High Court was
wholly in error in exercising jurisdiction
under Article 226 of the Constitution against
an order of detention at a pre-execution stage.
It was submitted that the preliminary objection
raised by the Detaining Authority was well
founded that the High Court should not have
entertained the writ petition and set aside the
order of detention before the order could be
executed against the detenu. It was also
submitted that an important factor which ought
to have been taken into consideration by the
High Court that the order could not be served
upon the detenu, was a material factor. The
detenu absconded himself and successfully
avoided service of order of detention, grounds
of detention and relevant documents in support
of the order. The authorities were, therefore,
constrained to affix the order at a conspicuous
place of residence of the detenu. The said
factor was crucial and the High Court should
have refused to exercise jurisdiction in favour
of the detenu.
14. On merits, it was contended that
several cases had been instituted against the
detenu under the 1955 Act and consistent
conduct of the detenu revealed that he
continued to indulge in black marketing
activities. If it is so, a preventive action
under the Act was called for and such action
could not have been interfered with by the High
Court. It was also submitted that the High
Court was not right in observing that the
detenu was ill-treated when he was arrested in
connection with Crime No. 3022 of 2006 at
Police Station, Wadi (Nagpur) and there was
’custodial violence’ by police authorities.
But, even if it is assumed to be true, the
detenu could have taken appropriate action in
accordance with law. That, however, does not
make order of detention vulnerable. The counsel
also contended that the High Court was not
right that no other steps had been considered
by the authorities. In fact, the detenu was
directed to execute a bond of good behaviour
and such bond was also executed by him. It was,
therefore, submitted that the order passed by
the High Court deserves to be set aside by
allowing the Detaining Authority to execute the
order of detention against the detenu and by
granting liberty to the detenu to challenge the
order by taking appropriate action in
accordance with law against such detention.
RESPONDENT’S SUBMISSION
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 25
15. Learned counsel for the respondent-
detenu, on the other hand, supported the order
of the High Court. He submitted that normally a
High Court or this Court, in exercise of
extraordinary powers under Article 226 or 32 of
the Constitution does not interfere with an
order of detention at pre-execution stage. But,
there is no restriction, limitation or
prohibition on the power of the Court in
exercising constitutional powers. It is a self-
imposed limitation by Courts themselves. In an
appropriate case, however, if the Court is
satisfied that the order is ex-facie illegal,
void, without jurisdiction or actuated by mala
fides, the Court has jurisdiction to grant
relief to the detenu even if the order is not
executed and the person is not served with such
order. In the case on hand, the learned counsel
submitted, the High Court was satisfied that
one of the exceptions carved out by this Court
in Alka Subhash Gadia had been made out and the
Court exercised the power which cannot be said
to be illegal or contrary to law. It was also
submitted that when it was alleged by the
detenu that there was ’custodial violence’ by
police authorities, such complaint and the
requisite materials should have been placed
before the Detaining Authority and the
Detaining Authority was bound to consider them.
If no such material was placed before the
authority or was placed but not considered by
the Detaining Authority, there was non-
application of mind on the part of the
authority and it can be concluded that the
order was passed for a ’wrong purpose’ and was
liable to be set aside. Finally, it was
submitted that the order of detention was set
aside by the High Court on October 17, 2006 and
no allegation had been made by the appellants
that subsequent to the said order, the detenu
has indulged in black-marketing activities.
Hence, even if this Court is convinced that the
High Court was not right in exercising
jurisdiction at pre-execution stage, this Court
may not interfere with the decision of the High
Court.
WHETHER HIGH COURT WAS RIGHT IN QUASHING ORDER
OF DETENTION?
16. Having heard learned counsel for the
parties and having given anxious consideration
to the facts and circumstances of the case, we
are clearly of the view that the High Court
exceeded its jurisdiction in entertaining the
writ-petition and in quashing and setting aside
the order of detention at pre-execution stage.
It cannot be gainsaid that the order of
detention has been made against the detenu in
exercise of power under the Act since the
Detaining Authority was satisfied that
detention of the writ-petitioner was necessary
"with a view to preventing him from acting in
any manner prejudicial to the maintenance of
supplies of commodities to the community" i.e.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 25
selling of kerosene in black market. True it is
that such order must be ’preventive’ and not
’punitive’ in nature. But the Court must be
conscious and mindful that the satisfaction of
the Detaining Authority is ’subjective’ in
nature and the Court cannot substitute its
’objective’ opinion for the subjective
satisfaction of Detaining Authority for coming
to the conclusion whether the activities of the
detenu were or were not prejudicial to the
maintenance of supplies of essential
commodities to the society. It would,
therefore, be appropriate if we consider the
concept of and relevant principles governing
’preventive detention’.
PERSONAL LIBERTY : PRECIOUS RIGHT
17. There can be no doubt that personal
liberty is a precious right. So did the
Founding Fathers believe because, while their
first object was to give unto the people a
Constitution whereby a Government was
established, their second object, equally
important, was to protect the people against
the Government. That is why, while conferring
extensive powers on the Government like the
power to declare an emergency, the power to
suspend the enforcement of Fundamental Rights
or the power to issue Ordinances, they assured
to the people a Bill of Rights by Part III of
the Constitution, protecting against executive
and legislative despotism those human rights
which they regarded as ’fundamental’. The
imperative necessity to protect those rights is
a lesson taught by all history and all human
experience. Our Constitution makers had lived
through bitter years and seen an alien
government trample upon human rights which the
country had fought hard to preserve. They
believed like Jefferson that "an elective
despotism was not the government we fought
for." And therefore, while arming the
Government with large powers to prevent anarchy
from within and conquest from without, they
took care to ensure that those powers were not
abused to mutilate the liberties of the people
[vide A.K. Roy v. Union of India, (1982) 1 SCC
271; Attorney General for India v. Amritlal
Pranjivandas, (1994) 5 SCC 54].
18. It has been observed in R. v. Home
Secretary, (1999) 2 AC 38 : (1997) 1 WLR 503,
"The imposition of what is in
effect a substantial term of
imprisonment by the exercise of
executive discretion, without
trial, lies uneasily with ordinary
concepts of the rule of law".
HABEAS CORPUS : FIRST SECURITY OF CIVIL LIBERTY
19. The celebrated writ of habeas corpus
has been described as "a great constitutional
privilege" or "the first security of civil
liberty". The writ provides a prompt and
effective remedy against illegal detention. By
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 25
this writ, the Court directs the person or
authority who has detained another person to
bring the body of the prisoner before the Court
so as to enable the Court to decide the
validity, jurisdiction or justification for
such detention. The principal aim of the writ
is to ensure swift judicial review of alleged
unlawful detention on liberty or freedom of the
prisoner or detenu.
20. In Cox v. Hakes, (1890) 15 AC 506 : 60
LJQB 89, Lord Halsbury propounded:
"For a period extending as far back as
our legal history, the writ of habeas
corpus has been regarded as one of the
most important safeguards of the
liberty of the subject. If upon the
return to that writ it was adjudged
that no legal ground was made to
appear justifying detention, the
consequence was immediate release from
custody. If release was refused, a
person detained might make a fresh
application to every judge or every
Court in turn, and each Court or Judge
was bound to consider the question
independently and not to be influenced
by the previous decisions refusing
discharge. If discharge followed, the
legality of that discharge could never
be brought in question. No writ of
error or demurrer was allowed."
21. In R v. Secretary of State for Home
Affairs; ex parte O’Brien, (1923) 2 KB 361 :
1923 AC 603 : 92 LJKB 797, Scrutton, LJ
observed: "The law in the country has been very
zealous of any infringement of personal
liberty. This case is not to be exercised less
vigilantly, because the subject whose liberty
is in question may not be particularly
meritorious. It is indeed one test of belief in
principles if you apply them to cases with
which you have no sympathy at all. You really
believe in freedom of speech, if you are
willing to allow it to men whose opinion seem
to you wrong and even dangerous; and the
subject is entitled only to be deprived of his
liberty by due process of law, although that
due process if taken will probably send him to
prison. A man undoubtedly guilty of murder must
yet be released if due forms of law have not
been followed in his conviction. It is quite
possible, even probable, that the subject in
this case is guilty of high treason; he is
still entitled only to be deprived of his
liberty by due process of law". (emphasis
supplied)
22. As early as in 1627, the following
memorable observations were made by Hyde, C.J.
in Darnel, Re, (1927) 3 St Tr. 1:
"Whether the commitment be by the King
or others, this Court is a place where
the King doth sit in person, and we
have power to examine it, and if it
appears that any man hath injury or
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 25
wrong by his imprisonment, we have
power to deliver and discharge him, if
otherwise, he is to be remanded by us
to prison".
23. In Halsbury’s Laws of England, (4th
Edn., Vol.11, para 1454, p.769), it is stated:
"In any matter involving the liberty
of the subject the action of the Crown
or its ministers or officials is
subject to the supervision and control
of the judges on habeas corpus. The
judges owe a duty to safeguard the
liberty of the subject not only to the
subjects of the Crown, but also to all
persons within the realm who are under
the protection of the Crown and
entitled to resort to the courts to
secure any rights which they may have,
and this whether they are alien
friends or alien enemies. It is this
fact which means the prerogative writ
of the highest constitutional
importance, it being a remedy
available to the lowliest subject
against the most powerful. The writ
has frequently been used to test the
validity of acts of the executive and,
in particular, to test the legality of
detention under emergency legislation.
No peer or lord of Parliament has
privilege of peerage or Parliament
against being compelled to render
obedience to a writ of habeas corpus
directed to him".
24. In Greene v. Secretary of State for
Home Affairs, (1941) 3 All ER 388 : 1942 AC
284, Lord Wright observed:
"The inestimable value of the
proceedings is that it is the most
efficient mode ever devised by any
system of law to end unlawful
detainments and to secure a speedy
release where the circumstances and
the law so required".
25. The underlying object of the writ of
habeas corpus has been succinctly explained by
Dua, J. in Sapmawia v. Deputy Commissioner,
Aijal, (1971) 1 SCR 690, in the following
words:
"The writ of habeas corpus is a
prerogative writ by which, the causes
and validity of detention of a person
are investigated by summary procedure
and if the authority having his
custody does not satisfy the court
that the deprivation of his personal
liberty is according to the procedure
established by law, the person is
entitled to his liberty. The order of
release in the case of a person
suspected of or charged with the
commission of an offence does not per
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 25
se amount to his acquittal or
discharge and the authorities are not,
by virtue of the release only on
habeas corpus, deprived of the power
to arrest and keep him in custody in
accordance with law for this writ is
not designed to interrupt the ordinary
administration of criminal law".
PREVENTIVE DETENTION : MEANING AND CONCEPT
26. There is no authoritative definition
of ’preventive detention’ either in the
Constitution or in any other statute. The
expression, however, is used in
contradistinction to the word ’punitive’. It is
not a punitive or penal provision but is in the
nature of preventive action or precautionary
measure. The primary object of preventive
detention is not to punish a person for having
done something but to intercept him before he
does it. To put it differently, it is not a
penalty for past activities of an individual
but is intended to pre-empt the person from
indulging in future activities sought to be
prohibited by a relevant law and with a view to
preventing him from doing harm in future.
27. In Hardhan Saha v. State of W.B.,
(1975) 3 SCC 198, explaining the concept of
preventive detention, the Constitution Bench of
this Court, speaking through Ray, C.J. stated;
"The essential concept of preventive
detention is that the detention of a
person is not to punish him for
something he has done but to prevent
him from doing it. The basis of
detention is the satisfaction of the
executive of a reasonable probability
of the likelihood of the detenu acting
in a manner similar to his past acts
and preventing him by detention from
doing the same. A criminal conviction
on the other hand is for an act
already done which can only be
possible by a trial and legal
evidence. There is no parallel between
prosecution in a Court of law and a
detention order under the Act. One is
a punitive action and the other is a
preventive act. In one case a person
is punished to prove his guilt and the
standard is proof beyond reasonable
doubt whereas in preventive detention
a man is prevented from doing
something which it is necessary for
reasons mentioned in Section 3 of the
Act to prevent".
28. In another leading decision in
Khudiram Das v. State of W.B., (1975) 2 SCR
832, this Court stated;
"The power of detention is clearly a
preventive measure. It does not
partake in any manner of the nature of
punishment. It is taken by way of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 25
precaution to prevent mischief to the
community. Since every preventive
measure is based on the principle that
a person should be prevented from
doing something which, if left free
and unfettered, it is reasonably
probable he would do, it must
necessarily proceed in all cases, to
some extent, on suspicion or
anticipation as distinct from proof.
Hatanjali Sastri, C.J., pointed out in
State of Madras v. V.G. Row A.I.R.
1952 SC 196 : 1952 SCR 597 that
preventive detention is "largely
precautionary and based on suspicion"
and to these observations may be added
the following words uttered by the
learned Chief Justice in that case
with reference to the observations of
Lord Finlay in Rex v. Halliday, 1917
AC 260 namely, that "the court was the
least appropriate tribunal to
investigate into circumstances of
suspicion on which such anticipatory
action must be largely based". This
being the nature of the proceeding, it
is impossible to conceive how it can
possibly be regarded as capable of
objective assessment. The matters
which have to be considered by the
detaining authority are whether the
person concerned, haying regard to his
past conduct judged in the light of
the surrounding circumstances and
other relevant material, would be
likely to act in a prejudicial manner
as contemplated in any of sub-clauses
(i), (ii) and (iii) of Clause (1) of
Sub-section (1) of Section 3, and if
so, whether it is necessary to detain
him with a view to preventing him from
so acting. These are not matters
susceptible of objective determination
and they could not be intended to be
judged by objective standards. They
are essentially matters which have to
be administratively determined for the
purpose of taking administrative
action. Their determination is,
therefore, deliberately and advisedly
left by the legislature to the
subjective satisfaction of the
detaining authority which by reason of
its special position, experience and
expertise would be best fitted to
decide them. It must in the
circumstances be held that the
subjective satisfaction of the
detaining authority as regards these
matters constitutes the foundation for
the exercise of the power of detention
and the Court cannot be invited to
consider the propriety or sufficiency
of the grounds on which the
satisfaction of the detaining
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 25
authority is based. The Court cannot,
on a review of the grounds, substitute
its own opinion for that of
the authority, for what is made
condition precedent to the exercise of
the power of detention is not an
objective determination of the
necessity of detention for a specified
purpose but the subjective opinion of
the detaining authority, and if a
subjective opinion is formed by the
detaining authority as regards the
necessity of detention for a
specified purpose, the condition of
exercise of the power of
detention would be fulfilled. This
would clearly show that the power of
detention is not a quasi-judicial
power".
(emphasis supplied)
29. Recently, in Naresh Kumar Goyal v.
Union of India, (2005) 8 SCC 276, the Court
said;
"It is trite law that an order of
detention is not a curative or
reformative or punitive action,
but a preventive action, avowed
object of which being to prevent
the anti-social and subversive
elements from imperiling the
welfare of the country or the
security of the nation or from
disturbing the public tranquility
or from indulging in smuggling
activities or from engaging in
illicit traffic in narcotic drugs
and psychotropic substances etc.
Preventive detention is devised to
afford protection to society. The
authorities on the subject have
consistently taken the view that
preventive detention is devised to
afford protection to society. The
object is not to punish a man for
having done something but to
intercept before he does it, and
to prevent him from doing so. It,
therefore, becomes imperative on
the part of the detaining
authority as well as the executing
authority to be very vigilant and
keep their eyes skinned but not to
turn a blind eye in securing the
detenue and executing the
detention order because any
indifferent attitude on the part
of the detaining authority or
executing authority will defeat
the very purpose of preventive
action and turn the detention
order as a dead letter and
frustrate the entire proceedings.
Inordinate delay, for which no
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 25
adequate explanation is furnished,
led to the assumption that the
live and proximate link between
the grounds of detention and the
purpose of detention is snapped".
[See : P.U. Iqbal v. Union of
India and Ors., (1992) 1 SCC 434;
Ashok Kumar v. Delhi
Administration, (1982) 2 SCC 403
and Bhawarlal Ganeshmalji v. State
of Tamilnadu, (1979) 1 SCC 465].
PREVENTIVE DETENTION : NECESSARY EVIL
30. Liberty of an individual has to be
subordinated, within reasonable bounds, to the
good of the people. The framers of the
Constitution were conscious of the practical
need of preventive detention with a view to
striking a just and delicate balance between
need and necessity to preserve individual
liberty and personal freedom on the one hand
and security and safety of the country and
interest of the society on the other hand.
Security of State, maintenance of public order
and services essential to the community,
prevention of smuggling and black marketing
activities, etc. demand effective safeguards in
the larger interests of sustenance of a
peaceful democratic way of life. In considering
and interpreting preventive detention laws,
courts ought to show greatest concern and
solitude in upholding and safeguarding the
Fundamental Right of liberty of the citizen,
however, without forgetting the historical
background in which the necessity\027an unhappy
necessity\027was felt by the makers of the
Constitution in incorporating provisions of
preventive detention in the Constitution
itself. While no doubt it is the duty of the
court to safeguard against any encroachment on
the life and liberty of individuals, at the
same time the authorities who have the
responsibility to discharge the functions
vested in them under the law of the country
should not be impeded or interfered with
without justification [vide A.K. Roy v. Union
of India; Bhut Nath v. State of West Bengal,
(1974) 3 SCR 315; State of W.B. v. Ashok Dey,
(1972) 2 SCR 434; ADM Jabalpur v. Shirakant
Shukla, 1976 Supp SCR 132].
SUBJECTIVE SATISFACTION : SCOPE OF JUDICIAL
REVIEW
31. Subjective satisfaction being a
condition precedent for the exercise of the
power of preventive detention conferred on the
executive, the Court can always examine whether
the requisite satisfaction is arrived at by the
authority; if it is not, the condition
precedent to the exercise of the power would
not be fulfilled and the exercise of the power
would be bad.
32. A Court cannot go into correctness or
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 25
otherwise of the facts stated or allegations
levelled in the grounds in support of
detention. A Court of Law is ’the last
appropriate tribunal to investigate into
circumstances of suspicion on which such
anticipatory action must be largely based.’
33. That, however, does not mean that the
subjective satisfaction of Detaining Authority
is wholly immune from judicial reviewability.
By judicial decisions, courts have carved out
areas, though limited, within which the
validity of subjective satisfaction can be
tested judicially.
GROUNDS OF CHALLENGE
34. An order of detention can be
challenged on certain grounds, such as, the
order is not passed by the competent authority,
condition precedent for the exercise of power
does not exist; subjective satisfaction arrived
at by the Detaining Authority is irrational,
the order is mala fide; there is non-
application of mind on the part of the
Detaining Authority in passing the order; the
grounds are, or one of the grounds is, vague,
indefinite, irrelevant, extraneous, non-
existent or stale; the order is belated; the
person against whom an order is passed is
already in jail; the order is punitive in
nature; the order is not approved by
State/Central Government as required by law;
failure to refer the case of the detenu to the
Board constituted under the statute; the order
was quashed/revoked and again a fresh order of
detention was made without new facts, etc.
CHALLENGE TO DETENTION-ORDER PRIOR TO EXECUTION
35. A writ of habeas corpus may be prayed
in case of actual detention or imprisonment of
a person if it is illegal or unconstitutional.
But if a person is not actually detained,
obviously a writ of habeas corpus would not
lie. A question, however, may arise whether in
such an eventuality, no remedy at all is
available to an aggrieved person against whom
an order of detention has been made and such
order is still to be executed. In other words,
whether actual detention of a person against
whom an order of detention is made is sine qua
non or condition precedent for approaching a
Court of Law.
36. On this question, our attention has
been invited by the learned counsel for both
the sides to several decisions of this Court.
Having gone through those decisions, we are of
the view that normally and as a general rule,
an order of detention can be challenged by the
detenu after such order as also the grounds of
detention have been received by him and the
order is executed. In exceptional cases,
however, a High Court or this Court may
exercise extraordinary powers to protect a
person against an illegal invasion of his right
to freedom by protecting him while still he is
free by issuing an appropriate writ, direction
or order including a writ in the nature of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 25
mandamus questioning an order of detention and
restraining the authorities from interfering
with the right of liberty of an individual
against whom such order is made.
37. A direct question arose before this
Court in Kiran Pasha v. Government of A.P.,
(1990) 1 SCC 328. In that case, the petitioner
filed a writ petition in the High Court of
Andhra Pradesh under Article 226 of the
Constitution restraining the respondents from
making an order of detention against him. A
Single Judge of the High Court granted interim
relief against taking the petitioner in custody
but the Division Bench held that the order of
detention was already made even prior to filing
of the petition, the petitioner was taken in
custody and the petition had become
infructuous. According to the Division Bench,
the normal rule was that the petitioner should
first surrender to custody and then to move for
a writ of habeas corpus. The aggrieved
petitioner approached this Court. An important
question before this Court was whether a writ
petition for protection of a Fundamental Right
being threatened or in imminent danger was
maintainable. Following K.K. Kochuni v. State
of Madras, 1959 Supp (2) SCR 316 and approving
observations of the High Court of Bombay in
Jayantilal v. State of Maharashtra, (1981) 83
Bom LR 190 as also of the Full Bench of the
High Court of Gujarat in Ved Prakash v. State
of Gujarat, AIR 1987 Guj 253, this Court
observed:
"When a right is so guaranteed, it has
to be understood in relation to its
orbit and its infringement. Conferring
the right to life and liberty imposes
a corresponding duty on the rest of
the society, including the State, to
observe that right, that is to say,
not to act or do anything which would
amount to infringement of that right,
except in accordance with the
procedure prescribed by law. In other
words, conferring the right on a
citizen involves the compulsion on the
rest of the society, including the
State, not to infringe that right. The
question is at what stage the right
can be enforced? Does a citizen have
to wait till the right is infringed?
Is there no way of enforcement of the
right before it is actually infringed?
Can the obligation or compulsion on
the part of the State to observe the
right be made effective only after the
right is violated or in other words
can there be enforcement of a right to
life and personal liberty before it is
actually infringed? What remedy will
be left to a person when his right to
life is violated? When a right is yet
to be violated, but is threatened with
violation can the citizen move the
court for protection of the right? The
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 25
protection of the right is to be
distinguished from its restoration or
remedy after violation. When right to
personal liberty is guaranteed and the
rest of the society, including the
State, is compelled or obligated not
to violate that right, and if someone
has threatened to violate it or its
violation is imminent, and the person
whose right is so threatened or its
violation so imminent resorts to
Article 226 of the Constitution, could
not the court protect observance of
his right by restraining those who
threatened to violate it until the
court examines the legality of the
action? Resort to Article 226 after
the right to personal liberty is
already violated is different from the
pre-violation protection. Post-
violation resort to Article 226 is for
remedy against violation and for
restoration of the right, while pre-
violation protection is by compelling
observance of the obligation or
compulsion under law not to infringe
the right by all those who are so
obligated or compelled. To surrender
and apply for a writ of habeas corpus
is a post-violation remedy for
restoration of the right which is not
the same as restraining potential
violators in case of threatened
violation of the right. The question
may arise what precisely may amount to
threat or imminence of violation. Law
surely cannot take action for internal
thoughts but can act only after overt
acts. If overt acts towards violation
have already been done and the same
has come to the knowledge of the
person threatened with that violation
and he approaches the court under
Article 226 giving sufficient
particulars of proximate actions as
would imminently lead to violation of
right, should not the court call upon
those alleged to have taken those
steps to appear and show cause why
they should not be restrained from
violating that right? Instead of doing
so would it be the proper course to be
adopted to tell the petitioner that
the court cannot take any action
towards preventive justice until his
right is actually violated whereafter
alone he could petition for a writ of
habeas corpus? In the instant case
when the writ petition was pending in
court and the appellant’s right to
personal liberty happened to be
violated by taking him into custody in
preventive detention, though he was
released after four days, but could be
taken into custody again, would it be
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 25
proper for the court to reject the
earlier writ petition and tell him
that his petition has become
infructuous and he had no alternative
but to surrender and then petition for
a writ of habeas corpus? The
difference of the two situations, as
we have seen, have different legal
significance. If a threatened invasion
of a right is removed by restraining
the potential violator from taking any
steps towards violation, the rights
remain protected and the compulsion
against its violation is enforced. If
the right has already been violated,
what is left is the remedy against
such violation and for restoration of
the right". (emphasis supplied)
38. Alka Subhash Gadia was indeed a
leading decision of this Court on the point.
This Court in that case stated that if in each
and every case a detenu is permitted to
challenge an order of detention and seek stay
of the operation of the order before execution,
"the very purpose of the order and of the law
under which it is made will be frustrated since
such orders are in operation only for a limited
period".
39. The Court, after considering several
cases, observed that with a view to prevent
possible abuse of ’draconian measure’ of
preventive detention, the Legislature had taken
care to provide various salutary safeguards
such as (i) obligation to furnish to the detenu
the grounds of detention; (ii) right to make
representation against such action; (iii)
constitution of Advisory Board consisting of
persons who are or have been qualified to be
appointed as Judges of the High Court; (iv)
reference of the case of the detenu to the
Advisory Board; (v) hearing of the detenu by
the Advisory Board in person; (vi) obligation
of the Government to revoke detention order if
the Advisory Board so opines; (vii) maximum
period for which a person can be detained;
(viii) revocation of detention order by the
Government on the representation by the detenu,
etc.
40. The Court then considered the point as
to denial of a right to the proposed detenu to
challenge the order of detention before the
execution of order and observed:
"As regards his last contention, viz.,
that to deny a right to the proposed
detenu to challenge the order of
detention and the grounds on which it
is made before he is taken in custody
is to deny him the remedy of judicial
review of the impugned order which
right is a part of the basic structure
of the Constitution, we find that this
argument is also not well-merited
based as it is on absolute
assumptions. Firstly, as pointed out
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 25
by the authorities discussed above,
there is a difference between the
existence of power and its exercise.
Neither the Constitution including the
provisions of Article 22 thereof nor
the Act in question places any
restriction on the powers of the High
Court and this Court to review
judicially the order of detention. The
powers under Articles 226 and 32 are
wide, and are untrammelled by any
external restrictions, and can reach
any executive order resulting in civil
on criminal consequences. However, the
Courts have over the years evolved
certain self-restraints for exercising
these powers. They have done so in the
interests of the administration of
justice and for better and more
efficient and informed exercise of the
said powers. These self-imposed
restraints are not confined to the
review of the orders passed under
detention law only. They extend to the
orders passed and decisions made under
all laws. It is in pursuance of this
self-evolved judicial policy and in
conformity with the self-imposed
internal restrictions that the Courts
insist that the aggrieved person first
allow the due operation and
implementation of the concerned law
and exhaust the remedies provided by
it before approaching the High Court
and this Court to invoke their
discretionary, extraordinary, and
equitable jurisdiction under Articles
226 and 32 respectively. That
jurisdiction by its very nature is to
be used sparingly and in circumstances
where no other efficacious remedy is
available. We have while discussing
the relevant authorities earlier dealt
in detail with the circumstances under
which these extraordinary powers are
used and are declined to be used by
the courts. To accept Shri Jain’s
present contention would mean that the
courts should disregard all these
time-honoured and well-tested judicial
self-restraints and norms and exercise
their said powers, in every case
before the detention order is
executed. Secondly, as has been
rightly pointed out by Shri Sibbal for
the appellants, as far as detention
orders are concerned if in every case
a detenu is permitted to challenge and
seek the stay of the operation of the
order before it is executed, the very
purpose of the order and of the law
under which it is made will be
frustrated since such orders are in
operation only for a limited period.
Thirdly, and this is more important,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 25
it is not correct to say that the
courts have no power to entertain
grievances against any detention order
prior to its execution. The courts
have the necessary power and they have
used it in proper cases as has been
pointed out above, although such cases
have been few and the grounds on which
the courts have interfered with them
at the pre- execution stage are
necessarily very limited in scope and
number, viz., where the courts are
prima facie satisfied (i) that the
impugned order is not passed under the
Act under which it is purported to
have been passed, (ii) that it is
sought to be executed against a wrong
person, (iii) that it is passed for a
wrong purpose, (iv) that it is passed
on vague, extraneous and irrelevant
grounds or (v) that the authority
which passed it had no authority to do
so. The refusal by the courts to use
their extraordinary power of judicial
review to interfere with the detention
orders prior to their execution on any
other grounds does not amount to the
abandonment of the said power or to
their denial to the proposed detenu,
but prevents their abuse and the
perversion of the law in question".
(emphasis supplied)
41. The above principles have been
reiterated in subsequent cases decided by this
Court.
42. The learned counsel for the detenu
urged that on the facts and in the
circumstances of the case, the High Court was
right in holding that exception (iii) in Alka
Subhash Gadia got attracted inasmuch the order
was passed for a ’wrong purpose’.
43. We must concede our inability to
uphold the above contention. We have been
taken to the judgment of the High Court
impugned in the present appeal. So far as the
authority of the Commissioner of Police is
concerned, the High Court was satisfied that
the order was passed by the authority competent
to exercise the power. It was also clear that
the order was passed ’under the Act’ since the
Detaining Authority was satisfied that the
detention of the writ-petitioner was necessary
’with a view to preventing him from acting in
any manner prejudicial to the maintenance of
supplies of essential commodities to the
community’ i.e. kerosene. The grounds, in our
opinion, cannot be said to be vague, extraneous
irrelevant or non-existent. (In fact, the
detenu absconded and grounds could not be
served). It is not even alleged that the order
is sought to be executed against a wrong
person.
44. According to the High Court, however,
the order was passed for a ’wrong purpose’. It
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 25
was contended before the High Court on behalf
of the detenu that certain offences had been
registered against the detenu and they were
under investigation. The report of the Chemical
Analyzer was not received and yet the Detaining
Authority took into account those cases. It was
further submitted that offences were registered
against the detenu in July, 2003, September,
2005 and May, 2006 and no preventive action was
thought necessary to be taken by the authority
at any stage. It was when the detenu was
arrested in 2006 and a complaint was made
against ’custodial violence’ meted out to him
by police authorities while he was in custody
that with a view to save the skin of erring
police officials that an illegal order of
detention was passed. Thus, it was made for
’wrong purpose’ and not with a view to
preventing the writ petitioner from indulging
in black marketing of kerosene. The High Court
found ’considerable force’ in the submission.
The High Court, with respect, went wrong in
observing that once a detenu had made
allegations against the police atrocities and
custodial violence, the Detaining Authority
ought to have waited till the inquiry was
conducted and report submitted.
45. The Court observed;
"We find considerable force in this
submission. A careful perusal of
the events that followed the
registration of Crime No.3022/2006
at P.S. Wadi (Nagpur) indicates that
the petitioner made allegations
against Respondent No. 3 about
custodial violence immediately on
his release. The said complaint
dated 20.7.2006 was addressed to
Respondent No.2. This complaint was
forwarded by Respondent No.2 to DCP-
1 Nagpur on 26.7.2006 for necessary
enquiry and action. A copy of the
communication 26.7.2006 was also
forwarded to the petitioner.
Immediately on the next day i.e. on
27.7.2006 detention order was passed
by Respondent No. 2 even before any
enquiry could be made into complaint
made by the petitioner against
Respondent No. 3. The detaining
authority should have at least
waited till the enquiry into the
complaint made by the petitioner was
initiated and completed and the
result thereof either in the
positive or in the negative. Instead
of waiting for that, the detaining
authority immediately proceeded to
pass order of detention against the
petitioner which indicates that even
without subjective satisfaction of
the detaining authority hastily
passed the order of detention for
wrong purpose. This clearly shows
that the detention order against the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 25
petitioner was passed for a wrong
purpose and on this count the same
deserves to be quashed and set
aside".
46. The High Court again went wrong in
holding that two parallel and simultaneous
proceedings were not permissible in law. The
High Court, relying on Biram Chand v. State of
U.P. & Ors., (1974) 4 SCC 573, stated;
"A perusal of the grounds of
detention shows that Crime NO.
76/2006 of P.S. Mouda, District
Nagpur was taken into consideration
by the detaining authority for its
subjective satisfaction. Now, in case
the petitioner wants to make
representation to the detaining
authority against the order of
detention he is required to disclose
his defence which may cause prejudice
to the petitioner in defending the
criminal prosecution. In Biram Chand
v. State of Uttar Pradesh & Ors., AIR
1974 SC 1161, it has been held that
if the authority concerned makes an
order of detention under the Act and
also prosecutes him in criminal case
on self-same facts, the detaining
authority cannot take recourse to two
parallel and simultaneous proceedings
nor can take re-course to a ground
which is the subject matter of a
criminal trial. Thus on this ground
also the impugned order of detention
cannot be sustained".
47. Unfortunately, the attention of the
High Court was not invited to Hardhan Saha,
wherein the Constitution Bench did not approve
the law laid down by this Court in Biram Chand.
Referring to larger Bench decisions, the Court
stated;
"Article 14 is inapplicable
because preventive detention and
prosecution are not synonymous. The
purposes are different. The
authorities are different. The
nature of proceedings is different.
In a prosecution an accused is
sought to be punished for a past
act. In preventive detention, the
past act is merely the material for
inference about the future course of
probable conduct on the part of the
detenu.
The recent decisions of this
Court on this subject are many. The
decisions in Borjahan Gorey v. The
State of West Bengal reported in
(1972) 2 SCC 550, Ashim Kumar Ray v.
State of West Bengal reported in
(1973) 4 SCC 76, Abdul Aziz v. The
Distt. Magistrate, Burdwan and Ors.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 25
reported in (1973) 1 SCC 301 and
Debu Mahto v. The State of West
Bengal reported in (1974) 4 SCC 135
correctly lay down the principles to
be followed as to whether a
detention order is valid or not. The
decision in Biram Chand v. State of
Uttar Pradesh and Ors. reported in
(1974) 4 SCC 573 which is a Division
Bench decision of two learned Judges
is contrary to the other Bench
decisions consisting in each case of
three learned Judges. The principles
which can be broadly stated are
these. First merely because a detenu
is liable to be tried in a criminal
court for the commission of a
criminal offence or to be proceeded
against for preventing him from
committing offences dealt with in
Chapter VIII of the CrPC would not
by itself debar the Government from
taking action for his detention
under the Act. Second, the fact that
the Police arrests a person and
later on enlarges him on bail and
initiates steps to prosecute him
under the CrPC and even lodges a
first information report may be no
bar against the District Magistrate
issuing an order under the
preventive detention. Third, where
the concerned person is actually in
jail custody at the time when an
order of detention is passed against
him and is not likely to be released
for a fair length of time, it may be
possible to contend that there could
be no satisfaction on the part of
the detaining authority as to the
likelihood of such a person
indulging in activities which would
jeopardise the security of the State
or the public order. Fourth, the
mere circumstance that a detention
order is passed during the pendency
of the prosecution will not violate
the order. Fifth, the order of
detention is a precautionary
measure. It is based on a reasonable
prognosis of the future behavior of
a person based on his past conduct
in the light of the surrounding
circumstances".
(emphasis supplied)
48. Considering the facts on record in
their entirety, it is clear that many cases had
been filed against the detenu under the 1955
Act. It was alleged that the writ petitioner
was indulging in illegal activities of black
marketing of kerosene which was an essential
commodity. Those cases had been registered in
2002, 2003, 2005 and 2006. Thus, the action was
taken on the basis of past conduct of the
detenu having reasonable prognosis of future
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 25
behaviour and there was ’live link’ between the
activities of the detenu and the action of
preventive detention to reach subjective
satisfaction by the Detaining Authority. It
has come on record that the detenu was called
upon to execute a bond for good behaviour under
Sections 110 and 111 of the Code of Criminal
Procedure, 1973. It is, therefore, clear that
the authorities had taken steps under the
relevant law. But even otherwise, in our
opinion, such questions may become relevant and
can be considered after the order of detention
is executed.
49. Similarly, if the detenu was ill-
treated when he was in custody in connection
with any case registered against him under the
1955 Act, or there was custodial violence, it
would not affect detention of the writ-
petitioner. Whether there was such custodial
violence and whether police officers had abused
their position can indeed be gone into by a
competent authority or by a Court of law. That
circumstance, however, will not make the order
of detention invalid or for a ’wrong purpose’.
Externment proceedings initiated against the
detenu under Section 59 of the Bombay Police
Act, 1951 also would not make the action
assailable. In our considered opinion,
therefore, this was not a case in which
interference was warranted at pre-execution
stage.
50. In this connection, it may be
profitable if we refer to a decision of this
Court in Subhash Muljimal Gandhi v. L.
Himingliana & Anr., (1994) 6 SCC 14. There, an
order of detention was challenged by the detenu
at pre-execution stage. It was contended by
the detenu tht the contingencies noted in Alka
Subhash Gadia were illustrative and not
exhaustive. It was submitted that there might
well be other contingencies where such order
could be questioned at pre-execution stage. In
that case also, it was alleged that the detenu
was harassed, humiliated and beaten by
authorities and the case called for grant of
relief before execution of order of detention.
51. Negativing the contention and
referring to Alka Subhash Gadia and N.K. Bapna
v. Union of India, (1992) 3 SCC 512, the Court
said;
"The above principles laid down in
Alka Subhash Gadia have been quoted
with approval by another three-Judge
Bench in N.K. Bapna v. Union of India
((1992) 3 SCC 512. Bound as we are by
the above judgments, we must hold
that the other contingencies, if any,
must be of the same species as of the
five contingencies referred to
therein. Coming now to Mr.
Jethmalani’s submission, that the
detention order was passed ’for a
wrong purpose’, namely, to harass and
humiliate the appellant by concocting
a false case of smuggling, based
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 25
primarily on a confession obtained
from him after subjecting to him to
assault, illegal detention and
extortion we find that the detaining
authority has denied the allegations
of assault and extortion. Needless to
say these are disputed questions of
fact, which we cannot entertain much
less delve into or decide upon. In
any case, the said fact, even if true
cannot vitiate the order of
detention". (emphasis supplied)
52. We may also refer to one more case of
this Court in State of Bihar v. Ram Balak
Singh, (1966) 3 SCR 344. The question which
arose before this Court there related to grant
of bail/parole in a petition filed by a detenu
for a writ of habeas corpus. The Court observed
that there is vital difference between
’preventive detention’ and ’punitive
detention’. Preventive detention is a
precautionary measure and is intended to pre-
empt a person from indulging in illegal or
anti-social activities in order to safeguard
the defence of India, public safety,
maintenance of public order, maintenance of
supplies and services essential to the life of
the community, prevention of smuggling
activities, etc. Therefore, the jurisdiction of
the court to grant relief to the detenu in such
proceedings is indeed narrow and very much
limited. Bail cannot be granted as a matter of
common practice on considerations generally
applicable to cases of punitive detention.
Therefore, whenever the Court is of the view
that prima facie the allegations made in the
writ petition disclose a serious defect in the
order of detention, the wiser and the more
sensible and reasonable course to adopt would
invariably be to expedite the hearing of the
writ petition and deal with the merits without
any delay. (emphasis supplied)
53. The Court, however, held that it
cannot be contended as a proposition of law
that a writ Court has no jurisdiction to make
an interim order giving the detenu the relief
which the Court would be entitled to grant at
the end of the proceedings. If the Court has
jurisdiction to give the main relief to the
detenu at the end of the proceedings, on
principle and in theory, it is not easy to
understand why the Court cannot give interim
relief to the detenu pending the final disposal
of his writ petition. The interim relief which
can be granted in habeas corpus proceedings
must no doubt be in aid of, and auxiliary to,
the main relief. It cannot be urged that
releasing a detenu on bail is not in aid of, or
auxiliary to the main relief for which a claim
is made on his behalf in the writ petition.
54. The Court then concluded:
"In dealing with writ petitions of
this character, the Court has
naturally to bear in mind the object
which is intended to be served by the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 25
orders of detention. It is no doubt
true that a detenu is detained without
a trial; and so, the courts would
inevitably be anxious to protect the
individual liberty of the citizen on
grounds which are justiciable and
within the limits of their
jurisdiction. But in upholding the
claim for individual liberty within
the limits permitted by law, it would
be unwise to ignore the object which
the orders of detention are intended
to serve. An unwise decision granting
bail to a party may lead to
consequences which are prejudicial to
the interests of the community at
large; and that is a factor which must
be duly weighed by the High Court
before it decides to grant bail to a
detenu in such proceedings. We are
free to confess that we have not come
across cases where bail has been
granted in habeas corpus proceedings
directed against orders of detention
under R. 30 of the Rules, and we
apprehend that the reluctance of the
courts to pass orders of bail in such
proceedings is obviously based on the
fact that they are fully conscious of
the difficulties - legal and
constitutional, and of the other risks
involved in making such orders."
(emphasis supplied)
55. The learned counsel for the respondent
referred to Rajinder Arora v. Union of India &
Ors., (2006) 4 SCC 796. On the facts of the
case, the Court held that the case of the
appellant was covered by exceptions (iii) and
(iv) of Alka Subhash Gadia and the relief was
granted.
56. Likewise, in K.S. Mangamuthu v. State
of Tamil Nadu & Ors., (2006) 4 SCC 792, there
was non-placement of relevant material before
the Detaining Authority and it was held by this
Court that the order of detention was vitiated.
57. The Counsel relied upon certain other
decisions wherein the order was quashed and set
aside. There, however, the order was executed
and the detenu surrendered. As already held by
us, at the second stage, i.e. after the order
of detention is executed and the person is
served with the grounds of detention, he can
challenge such order and Court will decide the
legality or otherwise of the action.
58. From the foregoing discussion, in our
judgment, the law appears to be fairly well-
settled and it is this. As a general rule, an
order of detention passed by a Detaining
Authority under the relevant ’preventive
detention’ law cannot be set aside by a Writ
Court at the pre-execution or pre-arrest stage
unless the Court is satisfied that there are
exceptional circumstances specified in Alka
Subhash Gadia. The Court must be conscious and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 25
mindful of the fact that this is a ’suspicious
jurisdiction’ i.e. jurisdiction based on
suspicion and an action is taken ’with a view
to preventing’ a person from acting in any
manner prejudicial to certain activities
enumerated in the relevant detention law.
Interference by a Court of Law at that stage
must be an exception rather than a rule and
such an exercise can be undertaken by a Writ
Court with extreme care, caution and
circumspection. A detenu cannot ordinarily seek
a writ of mandamus if he does not surrender and
is not served with an order of detention and
the grounds in support of such order.
59. The case on hand, in our considered
opinion, does not fall within the category of
exceptional cases and the High Court committed
an error of law in setting aside the order of
detention at the pre-execution and pre-arrest
stage. The said order, therefore, deserves to
be set aside and is hereby set aside. It is
open to the authorities to execute the order of
detention. It is equally open to the detenu to
challenge the legality thereof on all available
grounds.
60. Before parting with the matter, we may
clarify that all observations made by us in
this judgment are only for the purpose of
deciding the legality of the order passed by
the High Court and impugned in the present
appeal. We may not be understood to have
expressed any opinion one way or the other on
the allegations and counter-allegations by the
parties. It is also made clear that if after
the execution of the order, the action is
challenged by the detenu, the Court will decide
the case strictly in accordance with law on its
own merits without being inhibited by any
observations made either in the decision of the
High Court or in the present judgment.
61. The appeal is accordingly allowed.