Full Judgment Text
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PETITIONER:
KANCHANLAL MANEKLAL CHOKSHI
Vs.
RESPONDENT:
THE STATE OF GUJARAT AND ORS.
DATE OF JUDGMENT23/07/1979
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
SARKARIA, RANJIT SINGH
SHINGAL, P.N.
CITATION:
1979 AIR 1945 1980 SCR (1) 54
1979 SCC (4) 14
CITATOR INFO :
RF 1981 SC1191 (9)
F 1982 SC 8 (8,10)
R 1983 SC1130 (11)
F 1987 SC2332 (14)
ACT:
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974-Failure of detaining
authority to consider possibility of prosecution being
launched-If could lead to the conclusion that it never
applied its mind-Order of detention if void on that ground.
HEADNOTE:
In Ashok Murlidhar v. State of Gujarat a Division Bench
of the High Court thought that this Court in Hardhan Saha &
Anr. v. The State of West Bengal & Ors., [1975] 1 SCR 778
laid down that where a person was sought to be detained
preventively the possibility of a prosecution being launched
was an irrelevant consideration which need never be present
to the mind of the detaining authority. Purporting to follow
this decision another Division Bench of the High Court
rejected the habeas corpus petition of the appellant who was
in preventive detention under the provisions of Conservation
of Foreign Exchange and Prevention of Smuggling Activities
Act, 1974. The Division Bench certified that a substantial
question whether it is necessary for the detaining authority
to consider whether a person should be prosecuted before an
order of detention is made against him needed to be decided
by this Court.
In appeal to this Court it was contended on behalf of
the appellant that it was axiomatic that the detaining
authority must invariably consider the possibility of
launching a prosecution before making an order of detention,
in the absence of which the order of detention must be held
to be bad.
Dismissing the appeal,
^
HELD: 1. In Hardhan Saha’s case this Court did not say
that the possibility of a prosecution being launched was an
irrelevant consideration which need never be present to the
mind of the detaining authority. All that was laid down in
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that case was that the mere circumstance that a detenu was
liable to be prosecuted was not by itself a bar to the
making of an order of preventive detention. It does not
follow therefrom that failure to consider the possibility of
a prosecution being launched cannot ever lead to the
conclusion that the detaining authority never applied its
mind and the order of detention was, therefore, bad. [57 F-
G]
2. The principles emerging from a review of the cases
decided by this Court are that the ordinary criminal process
is not to be circumvented or short-circuited by ready resort
to preventive detention, but that the possibility of
launching a criminal prosecution is not an absolute bar to
an order of preventive detention. Nor is it correct to say
that if such possibility is not present to the mind of the
detaining authority the order of detention is necessarily
bad. However, the failure of the detaining authority to
consider the possibility of launching a criminal prosecution
may, in the circumstances of a case, lead to the conclusion
that the detaining authority had not applied
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its mind to the vital question whether it was necessary to
make an order of preventive detention. Where an express
allegation is made that the order of detention was issued in
a mechanical fashion without keeping present to its mind the
question whether it was necessary to make such an order when
an ordinary criminal prosecution could well serve the
purpose, the detaining authority must satisfy the court that
the question too was borne in mind before the order of
detention was made. If the detaining authority fails to
satisfy the court that the detaining authority so borne the
question in mind the court would be justified in drawing the
inference that there was no application of the mind of the
detaining authority to the vital question whether it was
necessary to preventively detain the detenu. [60 A-D]
In the instant case the grounds of detention served on
the appellant contained a very elaborate statement of facts
quite clearly pointing to an application of the mind by the
detaining authority. The appellant did not complain in his
petition that the detaining authority had not applied its
mind and in particular had not considered the question of
the possibility of a prosecution nor were there any facts
appearing from the record which could lead to the conclusion
that the detaining authority did not apply its mind to
relevant considerations. The order of detention is not
infirm in any manner. [60 E-F]
Bhuthnath Mate v. The State of West Bengal, [1974] 3
SCR 315; Srilal Shaw v. State of West Bengal & Ors., AIR
1975 SC 393; Abdul Gaffer v. State of West Bengal, AIR 1975
SC 1496; Dulal Roy v. The District Magistrate, Burdwan &
Ors., [1975] 3 SCR 186; Salim v. State of West Bengal;
[1975] 3 SCR 394; explained.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
193 of 1979.
From the Judgment and Order dated 23-1-1979 of the
Gujarat High Court in Special Criminal Application No. 8/79.
P. H. Parekh and M. Mudgol for the Appellant.
N. M. Phadke, S. P. Nayyar and M. N. Shroff for the
Respondent.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J.-Kanchanlal Maneklal Chokshi who is
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in preventive detention under the provisions of the
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 and whose petition for the issue of a
writ of Habeas Corpus was rejected by the High Court of
Gujarat is the appellant in this appeal. The High Court,
while rejecting the petition, granted a certificate under
Article 133(1) of the Constitution that the case involved a
substantial question of law of general importance which
needed to be decided by the Supreme Court. The substantial
question of law so certified was ’whether it is necessary
for the detaining authority to consider whether a person
should be prosecuted before an order of detention is made
against him’. The Division Bench of the Gujarat High Court
in rejecting the particular contention of the appellant 5-
475 SCI/79
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purported to follow an earlier decision of another Division
Bench of the same Court in Ashok Murlidhar v. State of
Gujarat.(1) In that case Divan C. J., and Majumdar, J.,
though inclined to the view that the possibility of a
criminal prosecution being launched should be present to the
mind of the detaining authority, felt constrained to hold
otherwise because of what, they thought had been decided by
this Court in Hardhan Saha & Anr. v. State of West Bengal &
Ors.(2). In our view, this Court did not say in Hardhan Saha
v. State of West Bengal that the possibility of a
prosecution being launched was an irrelevant consideration
which need never be present to the mind of the detaining
authority. On the other hand, we do not also think that it
is axiomatic, as sought to be contended by the learned
Counsel for the appellant, that the detaining authority must
invariably consider the possibility of launching a
prosecution before making an order of detention and that, if
not, the order of detention must necessarily be held to be
bad.
In Hardhan Saha v. State of West Bengal, the vires of
the provisions of the Maintenance of Internal Security Act
was in question. One of the contentions was that Section 3
of the Act offended Article 14 of the Constitution as it
permitted ’the same offence to be a ground for detention in
different and discriminatory ways’. It was submitted that
while A might be prosecuted but not detained preventively,
might not be prosecuted but only detained preventively and C
might be both prosecuted and detained preventively. Dealing
with the contention, a Bench of five judges of this Court
explained the basic distinction between preventive detention
and detention following upon conviction and observed:
"The power of preventive detention is
qualitatively different from punitive detention. The
power of preventive detention is precautionary power
exercised in reasonable anticipation. It may or may not
relate to an offence. It is not a parallel proceeding.
It does not overlap with prosecution even if it relies
on certain facts for which prosecution may be launched
or may have been launched. An order of preventive
detention may be made before or during prosecution. An
order of preventive detention may be made with or
without prosecution and in anticipation or after
discharge or even acquittal. The pendency of
prosecution is no bar to an order of preventive
detention. An order of preventive detention is also not
a bar to prosecution".
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The Court then referred to various earlier decisions and
deduced the following principles:
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"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 Code of Criminal Procedure 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
Code of Criminal Procedure 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 behaviour of a
person based on his past conduct in the light of the
surrounding circumstances".
Clearly, the Court did not lay down that the
possibility of a prosecution being launched was an
irrelevant consideration, not to be borne in mind by the
detaining authority. All that was laid down was that the
mere circumstance that a detenu was liable to be prosecuted
was not by itself a bar to the making of an order of
preventive detention. It does not follow therefrom that
failure to consider the possibility of a prosecution being
launched cannot ever lead to the conclusion that the
detaining authority never applied its mind and the order of
detention was, therefore, bad.
In Bhutnath Mate v. State of West Bengal(1) Krishna
Iyer and Sarkaria JJ., declared the detention illegal for
denial of opportunity to make effective representation. On
the question whether the failure of criminal prosecution was
a bar to preventive detention the answer was a definite
’no’. The learned judges however expressed
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apprehension against the danger to the democratic way of
life inherent in ’the potential executive tendency to shy at
Courts for prosecution of ordinary offences and to rely
generously on the easier strategy of subjective
satisfaction’. The question presently under consideration,
namely, whether the failure of the detaining authority to
keep in mind the possibility of a prosecution would
necessarily vitiate the order of detention was not
considered by the learned judges.
In Srilal Shaw v. State of West Bengal & Ors.(1), the
prosecution was dropped and thereafter an order of
preventive detention was passed. The substance of the
allegation against the detenu was that he was in unlawful
possession of scrap metal belonging to the Railway. The
Court came to the conclusion that on the material which was
available to the detaining authority, it was impossible to
arrive at the conclusion that the possession of the
petitioner was unlawful. The Court found that the reason
given by the District Magistrate for dropping the
prosecution was unacceptable. It was observed that the
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prosecution was in all probability dropped as the petitioner
might have been able to establish that his possession of the
goods was not unlawful. The case struck the Court as a
typical case in which for no apparent reason a person who
could easily be prosecuted under the punitive law was being
preventively detained. It is seen that the decision turned
on the peculiar facts of the case and throws no light on the
question presently raised before us.
In Abdul Gaffer v. State of West Bengal(2) the order of
detention was passed on the basis of a few instances of
theft of Railway property for which the detenu could well
and easily have been prosecuted. The contention before the
Court was that the order of detention was passed by the
detaining authority mechanically without applying its mind
to the question whether the facts disclosed the tendency of
the petitioner to act prejudicially in the manner mentioned
in the detention order. The bald and sweeping allegation was
made in the counter filed on behalf of the State that
material witnesses were afraid of giving evidence in the
Court against the detenu. The material witnesses were
members of the Railway Protection Force. In that situation
Sarkaria J., observed that the version given in the counter
was incredible and could not be swallowed. The learned Judge
then observed "the conclusion therefore is inescapable that
the petitioner has been proventively detained without
application of mind as to whether the prosecution against
him was foredoomed to failure on the ground of witnesses
being afraid to depose against the detenu
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in Court. The impugned order has been made in a casual and
cavalier manner". It is seen that there was an express
allegation that recourse was had to preventive detention
despite the fact that criminal prosecutions could well have
been successfully launched, based as the case was on the
evidence of members of the Railway Protection Force. The
reason given by the State for taking recourse to preventive
detention was found to be fantastic. The decision thus
stands on the special facts of the case.
In Dulal Roy v. The District Magistrate, Burdwan &
Ors.,(1) the Court had to consider a situation where a month
after a person was arrested in connection with a criminal
case he was discharged but was taken into custody on the
same day pursuant to an order of detention. Krishna Iyer and
Sarkaria, JJ., while observing that as an abstract legal
proposition an order of preventive detention could be
validly passed against a person in jail custody on the same
facts on which he was being prosecuted for a substantive
offence in a Court, pointed out that such an order of
detention was readily vulnerable to the charge that the
detaining authority was taking recourse to preventive
detention in order to circumvent the penal law and the
process of the Court. The learned Judges were satisfied that
the discharge of the detenu in a criminal case was not due
to any shortcoming in the evidence or difficulty in its
production in Court. The order of detention was, therefore,
quashed on the ground of non application of mind by the
detaining authority.
In Salim v. State of West Bengal,(2) Chandrachud J.,
speaking for the Court observed that the fact that the
detenu could have been prosecuted for the acts attributed to
him did not affect the validity of the order of preventive
detention. The further question whether it was incumbent on
the detaining authority to consider the question of
possibility of prosecution was not considered by the Court.
In Ashok Murlidhar v. State of Gujarat, (supra) Divan
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C.J., and Majumdar, J., appeared to think that the Bench of
five Judges of this Court which decided Hardhan Saha & Anr.
v. State of West Bengal & Ors., (supra) had taken a view
different from that expressed in Bhuthnath Mate v. State of
West Bengal, Abdul Gaffer v. State of West Bengal, Srilal
Shaw v. State of West Bengal & Ors., Dulal Roy v. The
District Magistrate, Burdwan & Ors., (supra) We do not think
that there is any such conflict as thought by the Division
Bench of the Gujarat High Court. The principles emerging
from a review of the
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above cases may be summarised in the following way:
The ordinary criminal process is not to be circumvented
or short-circuited by ready resort to preventive detention.
But, the possibility of launching a criminal prosecution is
not an absolute bar to an order of preventive detention. Nor
is it correct to say that if such possibility is not present
to the mind of the detaining authority the order of
detention is necessarily bad. However, the failure of the
detaining authority to consider the possibility of launching
a criminal prosecution may, in the circumstances of a case,
lead to the conclusion that the detaining authority had not
applied its mind to the vital question whether it was
necessary to make an order of preventive detention. Where an
express allegation is made that the order of detention was
issued in a mechanical fashion without keeping present to
its mind the question whether it was necessary to make such
an order when an ordinary criminal prosecution could well
serve the purpose, the detaining authority must satisfy the
Court that that question too was borne in mind before the
order of detention was made. If the detaining authority
fails to satisfy the Court that the detaining authority so
bore the question in mind the Court would be justified in
drawing the inference that there was no application of the
mind by the detaining authority to the vital question
whether it was necessary to preventively detain the detenu.
The facts of the present case are that the grounds of
detention served on the appellant contain a very elaborate
statement of facts quite clearly pointing to an application
of the mind by the detaining authority. The appellant did
not complain in the Writ Petition that the detaining
authority had not applied its mind and in particular had not
considered the question of the possibility of a prosecution.
Nor are there any facts appearing from the record which can
lead us to infer that the detaining authority did not apply
its mind to relevant considerations. We do not, therefore,
think that the order of detention is in any manner infirm.
The appeal is accordingly dismissed.
P.B.R. Appeal dismissed.
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