2004 (2) TMI 361 - SC - Companies Law

Whether the detenu or any one on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it? Whether the period during which the detenu is on parole can be adjusted from the period of detention indicated in the detention order? Held that - Appeal allowed. 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 reliance sought to be placed on the fate of proceedings taken against others is wholly inappropriate. The individual role, behavioural attitude and prognostic proposens-this 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.

Issues Involved:
1. Legality of the detention order under Section 3(1) of COFEPOSA.
2. Territorial jurisdiction of the High Court.
3. Consideration of the time gap between the detention order and its execution.
4. Applicability of the Sunil Fulchand Shah case.
5. Role of preventive detention and its legal framework.
6. Pre-execution challenges to detention orders.
7. Judicial precedents and their applicability.

Detailed Analysis:

1. Legality of the Detention Order under Section 3(1) of COFEPOSA:
The Union of India questioned the legality of the Punjab and Haryana High Court's judgment quashing the detention order passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The High Court had quashed the order due to the time gap between the issuance of the detention order and its consideration by the High Court.

2. Territorial Jurisdiction of the High Court:
The High Court initially decided on 31-5-2002 that it had territorial jurisdiction to deal with the matter but dismissed the writ petition. However, upon review, it stayed the operation of the detention order pending fresh consideration.

3. Consideration of the Time Gap between the Detention Order and its Execution:
The High Court relied on the decision in Sunil Fulchand Shah v. Union of India, which discussed the desirability of detaining a person after a considerable time gap. The Court held that a live link for preventive detention must still exist, which was questioned due to the time gap.

4. Applicability of the Sunil Fulchand Shah Case:
The Additional Solicitor General argued that the Sunil Fulchand Shah case was not applicable as it dealt with the adjustment of parole periods in detention orders, not pre-execution challenges. The Court observed that the case had no bearing on the current situation where the detention order was challenged before execution.

5. Role of Preventive Detention and its Legal Framework:
Preventive detention is an anticipatory measure, not punitive, aimed at preventing actions prejudicial to specified objects. The satisfaction of the Detaining Authority is crucial, and the law allows for a broad discretion in its exercise. The balance between individual liberty and societal order is essential, and the law justifies preventive detention to maintain public order and security.

6. Pre-Execution Challenges to Detention Orders:
The Court examined whether a detenu or anyone on their behalf could challenge the detention order without surrendering. In Addl. Secretary to Government of India v. Smt. Alka Subhash Gadia, the Court outlined limitations on judicial intervention at the pre-execution stage, allowing interference only in specific circumstances such as the order being passed for a wrong purpose or on irrelevant grounds.

7. Judicial Precedents and Their Applicability:
The Court emphasized that judicial precedents should not be treated as statutes and must be applied considering the specific facts of each case. The High Court's reliance on precedents without fitting the factual situation was deemed inappropriate. The Court reiterated that the proper course for a person challenging a detention order is to surrender first and then contest the grounds of detention.

Conclusion:
The Supreme Court concluded that the High Court was not justified in quashing the detention order based on the time gap and the stay order. The respondent cannot benefit from the delay caused by their own actions. The appeal was allowed, the High Court's order was set aside, and the writ petition was dismissed. The respondent was directed to surrender to custody and pursue any legal remedies available thereafter. The conclusions in SLP (Crl.) No. 3901/2003 were equally applicable to SLP (Crl.) No. 3902/2003, leading to the dismissal of both writ petitions.

← Previous Next →