2003 (12) TMI 587 - SC - Indian Laws

Whether the detenu or any one on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it? Held that - Appeal dismissed.In view of the legal and factual positions highlighted above this is not a fit case where any interference is called for before execution of the order of detention. The appellant if so advised may first surrender pursuant to the order of detention and thereafter have his grievances examined on merits.

Summary

Issues Involved:
1. Legality of the detention order under Section 12 of the Bihar Control of Crimes Act, 1981.
2. Authority of the District Magistrate to issue the detention order.
3. Applicability of the principles laid down in Alka Subhash Gadia's case.
4. Pre-execution challenge to the detention order.

Issue-wise Detailed Analysis:

1. Legality of the Detention Order:
The appellant challenged the legality of the detention order issued on 14.9.1995 under Section 12 of the Bihar Control of Crimes Act, 1981. The Patna High Court had previously declined to interfere, noting that the Act provided a procedure for detained individuals to make representations and be heard before an Advisory Board, thus safeguarding rights under Article 22 of the Constitution. The Supreme Court upheld this view, emphasizing that the Act's procedural safeguards were sufficient and the appellant's previous writ petitions on similar grounds had been dismissed.

2. Authority of the District Magistrate:
The appellant argued that the District Magistrate lacked authority under Section 12(2) of the Act to issue the detention order, citing a notification that was allegedly not in effect at the time. The respondent-State countered that a valid notification dated 20th June 1995 empowered the District Magistrate to issue such orders until 30.9.1995. The Supreme Court found that the District Magistrate was indeed authorized to issue the detention order within the specified period, and any reference to an earlier notification did not invalidate the order.

3. Applicability of Alka Subhash Gadia's Case:
The appellant contended that the principles from Alka Subhash Gadia's case applied, arguing for interference at the pre-detention stage. The Supreme Court reiterated the limited scope for such interference, as outlined in Alka Subhash Gadia, which permits pre-execution challenges only under specific circumstances, such as lack of authority, wrong person, wrong purpose, vague or irrelevant grounds, or mala fide actions. The Court found that the appellant's case did not meet any of these criteria, thus rejecting the plea for pre-execution interference.

4. Pre-execution Challenge to the Detention Order:
The appellant sought to challenge the detention order before its execution, arguing that the order was based on political vendetta and stale matters. The Supreme Court emphasized that preventive detention is a precautionary measure, not punitive, and is based on the subjective satisfaction of the detaining authority. The Court cited precedents, including Sayed Taher Bawamiya and Union of India v. Parasmal Rampuria, to underscore that pre-execution challenges are generally not entertained unless specific exceptions apply. The Court found no merit in the appellant's arguments and directed that the appellant should surrender pursuant to the detention order and then pursue any grievances on merits.

Conclusion:
The Supreme Court dismissed the appeal, affirming the legality of the detention order and the authority of the District Magistrate. The Court reiterated the limited scope for pre-execution challenges to detention orders and found no exceptional circumstances warranting interference in this case. The appellant was advised to surrender and then seek redress on merits.