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TMI Blog2004 (2) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... . 223 AND 224 OF 2004 - - - Dated:- 16-2-2004 - DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ. L. Nageswara Rao, Manish Singhvi, Rajiv Nanda and B. Krishna Prasad for the Appellant. Gopal Subramaniam, Vikram Chaudhari, Rakesh Dahiya, Sunil Verma and Mahabir Singh for the Respondent. JUDGMENT Arijit Pasayat, J. - Leave granted. 2. In both these two appeals the Union of India questions legality of the judgment rendered by the Punjab and Haryana High Court quashing the order of detention passed by the concerned authority under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short the COFEPOSA ). 3. A brief reference to the factual aspects which is almost undisputed would suffice. 4. Since the points for adjudication are common to both the appeals the factual position in SLP (Crl.) No. 3901/2003 is noted for convenience as the only difference between this case and the other case relates to the dates. The order of detention was passed under section 3(1) of COFEPOSA on 31-10-2001. The respondent filed a writ petition before the Punjab and Haryana High Court on 20-12-2001 and on 21-12-2001 an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y has to be satisfied afresh whether the detention was still necessary. It was submitted that liberty was given to the detaining authority and, therefore, it would not be proper to interfere. It is also pointed out that in the case of four similarly situated persons relating to the alleged offending acts, detention orders have been revoked in respect of two and in respect of two others, the High Court has quashed the orders of detention and no appeal has been filed. 8. So far as these four persons are concerned, learned ASG submitted that their cases were not considered at the pre-execution stage. All the four persons were in custody and their cases were considered by the Advisory Board or the High Court as the case may be. They do not stand at par with the present respondents. 9. 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 offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iety on the other. 10. The question whether the detenu or any one on his behalf is entitled to challenge the detention order without the detenu submitting or surren- dering to it has been examined by this Court on various occasions. One of the leading judgments on the subject is Addl. Secretary to Government of India v. Smt. Alka Subhash Gadia 1992 Suppl. (1) SCC 496. In the said judgment, it was observed by this Court as under : "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 limitations, 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 while dealing with cases under all laws. Though the Constitution does not place any restriction on these powers, the judicial decision have evolved them over a period of years taking into consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving 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 merit 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 sought to have, the court interferes with the resultant order; ( viii ) in proper cases the court also intervenes when some legal or fundamental right of the individual is seriously threatened, though not actually invaded." (p. 506) 11. In Sayed Tahe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 402 throws considerable light as to what would be the proper course for a person to adopt when he seeks to challenge an order of detention on the available grounds like delayed execution of detention order, delay in consideration of the representation and the like. These questions are really hypothetical in nature when the order of detention has not been executed at all and challenge is made at pre-execution stage. It was observed as under : "In our view, a very unusual order seems to have been passed in a pending appeal by the Division Bench of the High Court. It is challenged by the Union of India in these appeals. A detention order under section 3(1) of the COFEPOSA Act was passed by the authorities on 13-9-1996 against the respondent. The respondent before surrendering filed a writ petition in the High Court on 23-10-1996 and obtained an interim stay of the proposed order, which had remained unserved. The learned Single Judge after hearing the parties vacated the ad interim relief. Thereafter, the respondent went in appeal before the Division Bench and again obtained ad interim relief on 10-1-1997 which was extended from time to time. The writ appeal has not been still ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge." 15. In Home Office v. Dorset Yacht Co. 1970 (2) All ER 294 Lord Reid said, "Lord Atkin s speech. . . .is not to be treated as if it was a statute definition it will require qualification in new circumstances." Megarry, J. in (1971) 1 WLR 1062 observed : "One must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament." And. in Herrington v. British Railways Board 1972 (2) WLR 537 Lord Morris said: "There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case." Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lord Denning in the matter of applying precedents have become locus classicus . "Each case de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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