1990 (12) TMI 216 - SC - FEMA

Whether the detenu or anyone on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it? Held that - In the present case admittedly the proposed detenu is absconding and has been evading the service of the detention order. The first respondent who is his wife has sought to challenge the said order because the show-cause notice under sub-section (1) of Section 6 of the SAFEMA is issued to him a copy of which is also sent to her. Thus the assistance of the High Court under Article 226 of the Constitution is sought by the first respondent on behalf of the detenu to secure the order of detention with a view to defend the proceedings under the SAFEMA. Thus the proposed detenu is trying to secure the order of detention indirectly without submitting to it. What is further he is also trying to secure the grounds of detention as well as the documents supporting them which he cannot get unless he submits to the order of detention. No prima facie case is made out either before the High Court or before us for challenging the order of detention which would impel the Court to interfere with it at this pre-execution stage. Unfortunately the High Court disregarding the law on the subject and the long-settled principles on which alone it can interfere with the detention order at this stage has directed the authorities not only to furnish to the detenu the order of detention but also the grounds of detention and the documents relied upon for passing the detention order. The appellants took the plea that although they were willing to produce the order of detention and the grounds of detention for the perusal of the Court they cannot furnish them to the first respondent unless as required by the Act the detenu first submits to the impugned order. The High Court thereupon issued the contempt notice by its order dated June 30 1989. For the reasons discussed above we are of the view that both the orders of the High Court directing the appellants to furnish to the detenu or to the first respondent or her counsel the order of detention the grounds of detention and the documents supporting them as well as the contempt notice of 30th June 1989 are clearly illegal and unjustified and they are hereby quashed. Both the appeals are accordingly allowed.

Issues Involved:
1. Maintainability of the writ petition challenging the detention order without the detenu surrendering.
2. Entitlement of the detenu or petitioner to the detention order and grounds before surrendering.
3. Judicial review of detention orders prior to their execution.
4. The High Court's direction to furnish the detention order and grounds to the detenu or petitioner.

Detailed Analysis:

1. Maintainability of the Writ Petition Challenging the Detention Order Without the Detenu Surrendering:
The central issue was whether a writ petition challenging a detention order is maintainable if the detenu has not surrendered. The Supreme Court examined the relevant provisions of the Constitution, particularly Articles 21 and 22, which allow for preventive detention under specific conditions. The Court emphasized that the Constitution permits both punitive and preventive detention, provided it is according to procedure established by law. The Court held that the writ jurisdiction under Articles 226 and 32 should not be used to bypass the statutory machinery provided by the law. The Court stated, "The preventive detention law by its very nature has always posed a challenge before the Courts in a democratic society such as ours to reconcile the liberty of the individual with the allegedly threatened interests of the society and the security of the State particularly during times of peace."

2. Entitlement of the Detenu or Petitioner to the Detention Order and Grounds Before Surrendering:
The Court discussed whether the detenu or anyone on his behalf is entitled to the detention order and the grounds on which it is made before surrendering. The Court concluded that neither the Constitution nor the preventive detention laws provide for the furnishing of the detention order and grounds before the detenu is taken into custody. The Court stated, "To deny a right to the proposed detenu to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is a part of the basic structure of the Constitution." However, the Court held that this argument is not well-merited, as the judicial review is not denied but only deferred until after the execution of the order.

3. Judicial Review of Detention Orders Prior to Their Execution:
The Court addressed whether judicial review of detention orders prior to their execution is permissible. It held that while the courts have the power to review detention orders, such review should be exercised sparingly and only in exceptional cases. The Court listed specific grounds on which pre-execution judicial review could be entertained: (i) the order is not passed under the Act under which it is purported to have been passed, (ii) it is sought to be executed against a wrong person, (iii) it is passed for a wrong purpose, (iv) it is passed on vague, extraneous, and irrelevant grounds, or (v) the authority which passed it had no authority to do so. The Court emphasized that the refusal to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu but prevents their abuse and the perversion of the law in question.

4. The High Court's Direction to Furnish the Detention Order and Grounds to the Detenu or Petitioner:
The Court found that the High Court's order directing the authorities to furnish the detention order, the grounds of detention, and the documents relied upon for passing the detention order to the detenu or his counsel was illegal and unjustified. The Supreme Court quashed the High Court's orders, stating, "The relevant portion of the order passed by the High Court in that behalf on June 27, 1989, speaks for itself." The Court further noted that the High Court disregarded the long-settled principles on which it can interfere with the detention order at this stage and directed the authorities not only to furnish the order of detention but also the grounds of detention and the documents relied upon for passing the detention order.

Conclusion:
The Supreme Court allowed the appeals, quashing the High Court's orders directing the authorities to furnish the detention order, grounds of detention, and supporting documents to the detenu or his counsel. The Court reaffirmed that judicial review of detention orders prior to their execution is limited and should be exercised sparingly, only on specific grounds. The detenu or petitioner is not entitled to the detention order and grounds before surrendering, as the Constitution and valid laws permit preventive detention without prior disclosure of grounds.

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