1979 (7) TMI 239 - SC - Customs

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 ? Held that - This Court did not say in Hardhan Saha v. State of West Bengal 1974 (8) TMI 104 - SUPREME COURT 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.

Summary

Issues:
1. Whether the detaining authority must consider the possibility of prosecution before making an order of detention.
2. Whether failure to consider the possibility of prosecution vitiates the order of detention.

Analysis:
1. The primary issue in this case was whether the detaining authority is required to contemplate the potential prosecution of an individual before issuing an order of preventive detention. The High Court certified a substantial question of law under Article 133(1) of the Constitution, focusing on this aspect. The Supreme Court clarified that while the detaining authority is not obligated to invariably assess the likelihood of prosecution before detention, it is not irrelevant either. The Court emphasized the distinction between preventive detention and punitive detention, highlighting that the mere possibility of prosecution does not automatically render a detention order invalid.

2. The second issue revolved around whether the failure of the detaining authority to consider the possibility of prosecution could vitiate the order of detention. The Court examined various precedents to establish that while the possibility of prosecution is not a strict prerequisite for preventive detention, the detaining authority must demonstrate that it applied its mind to the necessity of preventive detention in each case. If an allegation arises that the order was issued mechanically without due consideration of prosecution, the detaining authority must prove otherwise. In the absence of such proof, the Court may infer a lack of application of mind, potentially leading to the order's invalidation.

3. The Court referenced multiple cases to elucidate the principles governing preventive detention concerning prosecution possibilities. Each case highlighted specific circumstances where the failure to contemplate prosecution impacted the validity of the detention order. The Court emphasized that preventive detention should not be a shortcut to circumvent the ordinary criminal process. However, the mere existence of a prosecution possibility does not automatically render a detention order defective. It all hinges on whether the detaining authority adequately considered the necessity of preventive detention in light of potential prosecution.

4. The judgment also addressed the specific facts of the case at hand, where the grounds of detention indicated a thorough assessment by the detaining authority. The appellant did not raise any objections regarding the consideration of prosecution possibilities. Consequently, the Court found no evidence suggesting a lack of application of mind by the detaining authority. Therefore, the order of detention was deemed valid, and the appeal was dismissed based on the established legal principles governing preventive detention and prosecution considerations.