Full Judgment Text
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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.