2013 (8) TMI 8 - SC - Customs

Validity of detention order - Third member decision - whether a detention order passed under the provisions of the COFEPOSA Act could be challenged at the pre-execution stage only on any of the five exceptions carved out by the Court in Addl. Secretary, Govt. of India vs. Alka Subhash Gadia (1990 (12) TMI 216 - SUPREME COURT OF INDIA) or whether such challenge could be maintained on other grounds as well Held that - those who have evaded the process of law shall not be heard by this Court to say that their fundamental rights are in jeopardy. At least, in all those cases, where proceedings such as the one contemplated under Section 7 of the COFEPOSA Act were initiated consequent upon absconding of the proposed detenu, the challenge to the detention orders on the live nexus theory is impermissible. Permitting such an argument would amount to enabling the law breaker to take advantage of his own conduct which is contrary to law. The question whether the five circumstances specified in Alka Subhash Gadia case (1990 (12) TMI 216 - SUPREME COURT OF INDIA ) are exhaustive of the grounds on which a pre-execution scrutiny of the legality of preventive detention order can be undertaken was considered by us earlier in the instant case. We held that the grounds are not exhaustive. Dropti Devi Vs. Union of India 2012 (7) TMI 202 - SUPREME COURT OF INDIA - But that does not persuade me to hold that such a scrutiny ought to be undertaken with reference to the cases of those who evaded the process of law. - All petitions dismissed.

Issues Involved:
1. Whether a detention order under COFEPOSA Act, 1974, can be challenged at the pre-execution stage only on the five exceptions mentioned in Alka Subhash Gadia's case or on other grounds as well.
2. Whether the absence of a live link between the detention order and the current circumstances invalidates the detention order.
3. Whether a proposed detenue can challenge the detention order after absconding or evading arrest.
4. The impact of Settlement Commission granting immunity from prosecution on the validity of a detention order.
5. Whether preventive detention orders can be issued when ordinary laws are available.
6. The applicability of Section 7 of the COFEPOSA Act and Section 7 of the National Security Act in making a preventive detention order.

Detailed Analysis:

1. Grounds for Challenging Detention Orders at Pre-Execution Stage:
The Supreme Court examined whether challenges to detention orders under the COFEPOSA Act, 1974, at the pre-execution stage must be confined to the five exceptions laid out in Alka Subhash Gadia's case. The Court concluded that these exceptions are illustrative, not exhaustive. The Court emphasized that the right to freedom is paramount and that judicial review powers under Articles 226 and 32 of the Constitution should not be restricted. The Court held that the law is dynamic and that new grounds of challenge, such as the absence of a live link and the intervention of Settlement Proceedings under the Customs Act, 1962, could also be considered.

2. Absence of Live Link:
The Court considered whether the absence of a live link between the detention order and the current circumstances invalidates the detention order. It was argued that if the proposed detenue had not engaged in similar activities since the detention order was issued, the order should be considered stale and irrelevant. The Court agreed that if no fresh activities were recorded, the detention orders should be quashed. The Court emphasized that preventive detention should not be used as a substitute for ordinary criminal prosecution and must be based on current, relevant activities.

3. Challenge by Absconding Detenue:
The Court examined whether a proposed detenue who has absconded or evaded arrest can challenge the detention order. It was argued that allowing such challenges would enable individuals to benefit from their own wrongdoings. The Court held that absconding or evading arrest should not automatically invalidate a detention order. However, it also recognized the need to balance individual rights and state interests, suggesting that each case should be evaluated on its own merits.

4. Impact of Settlement Commission's Immunity:
The Court considered the effect of the Settlement Commission granting immunity from prosecution under the Customs Act on the validity of a detention order. It was argued that once immunity is granted, the basis for preventive detention is undermined. The Court agreed, stating that if the Settlement Commission grants immunity, the detention order becomes redundant unless fresh illegal activities are recorded.

5. Preventive Detention vs. Ordinary Laws:
The Court examined whether preventive detention orders can be issued when ordinary laws are available. It was argued that preventive detention should not be used as an alternative to criminal prosecution under ordinary laws. The Court held that preventive detention is an extraordinary measure and should be used sparingly, only when ordinary laws are inadequate to prevent the commission of future crimes.

6. Applicability of Section 7 of COFEPOSA and NSA:
The Court analyzed the relevance of Section 7 of the COFEPOSA Act and Section 7 of the National Security Act, which deal with absconding persons. The provisions allow the government to take specific actions, such as reporting to a magistrate and issuing notifications for the proposed detenue to appear before an officer. The Court held that these provisions should be used to enforce detention orders and that absconding should not automatically invalidate such orders.

Conclusion:
The Supreme Court quashed several detention orders on the grounds that they had become stale and irrelevant due to the absence of any fresh illegal activities by the proposed detenues. The Court emphasized the importance of balancing individual rights with state interests and held that preventive detention should not be used as a substitute for ordinary criminal prosecution. The Court also recognized the need for judicial review of detention orders beyond the five exceptions laid out in Alka Subhash Gadia's case.

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