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TMI Blog2001 (1) TMI 901X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner in essence is that such a prayer has to be accepted as ( a ) there has been delay in execution of the order of detention; ( b ) there was non-consideration of the representation made by the petitioner; ( c ) there is no material to link petitioner s husband with any irregular or illegal activity. It has also been pleaded that a decision has been taken by the Government by notification dated 22-1-1999 bearing No. 671/14/98-CUS VIII notifying that concerned sponsoring authorities shall consider revocation of detention orders which have been issued prior to 1-1-1996 and have remained unexecuted. 2. A preliminary objection has been raised by the respondent stating that the criteria for entertaining the petition questioning legality of the order of the detention before execution has been laid down in many cases, and the petitioner has not made out a case for interference before execution of detention order. 3. Before dealing with rival submissions, it would be appropriate to deal with the purpose and intent of preventive detention. Preventive detention is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive detention is of utmost importance. The law has to be justified by the genius of its administration so as to strike the right balance between individual liberty on the one hand and the needs of an orderly society on the other. 4. The question whether the detenu or any one on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it has been examined by various Courts. One of the leading judgments on the subject is Addl. Secretary to the Govt. of India v. Alka Subhash Gadia 1992 Supp. (1) SCC 496. In para 12 of the said judgment, it was observed by the Apex Court as follows : "12. This is not to say that the jurisdiction of the High Court and the Supreme Court under Articles 226 and 32 respectively has no role to play once the detention punitive or preventive is shown to have been made under the law so made for the purpose. This is to point out the limita- tions which the High Court and the Supreme Court have to observe while exercising their respective jurisdiction in such cases. These limitations are normal and well known, and are self-imposed as a matter of prudence, propriety, policy and practice and are observed w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not applied its mind at all or has exercised its power dishonestly or for an improper purpose; ( vi ) where the Court cannot grant a final relief, the Court does not entertain petition only for giving interim relief. If the Court is of opinion that there is no other convenient or efficacious remedy open to the petitioner, it will proceed to investigate the case on its merits and if the Court finds that there is an infringement of the petitioner s legal rights, it will grant final relief but will not dispose of the petition only by granting interim relief; ( vii ) where the satisfaction of the authority is subjective, the Court intervenes when the authority has acted under the dictates of another body or when the conclusion is arrived at by the application of a wrong test or misconstruction of a statute or it is not based on material which is of a rationally probative value and relevant to the subject- matter in respect of which the authority is to satisfy itself. If again the satisfaction is arrived at by taking into consideration material which the authority properly could not, or by omitting to consider matters which it ought to have, the court interferes with the resultant ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opriate cases to interfere with the detention order at the pre-execution stage but the scope for interference is very limited. It was held that the courts will interfere at the pre-execution stage with the detention orders only after they are prima facie satisfied ( i )that the impugned order is not passed under the Act under which it is purported to have been passed ( ii )That it is sought to be executed against a wrong person ( iii )That it is passed for a wrong purpose ( iv )That it is passed on vague, extraneous and irrelevant grounds, or ( v )That the authority which passed it had no authority to do so. As we see it, the present case does not fall under any of the aforesaid five exceptions for the court to interfere. It was contended that these exceptions are not exhaustive. We are unable to agree with this submission. Alka Subhash Gadia case shows that it is only in these five types of instances that the court may exercise its discretionary jurisdiction under Article 226 or Article 32 at the pre-execution stage. The petitioner had sought to contend that the order which was passed was vague, extraneous and on irrelevant grounds but there is no material for ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 22(5) of the Constitution of India...." (underlined for emphasis) 8. With reference to the Government of India s purported notification No. 671/14/98-Cus-VIII dated 22-1-1998 it is submitted by the learned counsel for the petitioner that said notification has full application to the facts of the present case, as the detention order questioned was passed prior to 1-1-1996, and was to be revoked. In reply to this stand, it has been stated in the counter-affidavit by the respondents that there was no notification issued as pleaded. Only a letter bearing the number given was issued by the Joint Secretary (COFEPOSA) to different sponsoring authorities. It has been further clarified in the additional affidavit filed on 15-11-2000 that while reviewing cases of absconders in respect of detention orders passed prior to 1-1-1996, one of the criteria fixed was that the person concerned shall not belong to the category of organizers, financiers kingpins, etc. As petitioner s husband fell in the category of organizers, his detention order was not revoked. Though, the learned counsel for the petitioner pleaded that there is no material to substantiate the stand taken by the respondents. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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