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TMI Blog2008 (3) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... petition filed by the detenu-writ petitioner and set aside the order of detention dated July 27, 2006 passed by the Commissioner of Police (Nagpur City) under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. FACTUAL MATRIX 3. The case of the appellants is that one Bhaurao Punjabrao Gawande (detenu) was running a business of transportation of petroleum products and had fleet of tankers for carrying on the said occupation. He was indulging in illegal purchase and sale of blue kerosene oil in black market since last five to six years. Certain cases were also registered against the said Bhaurao under the Essential Commodities Act, 1955 (hereinafter referred to as 1955 Act ). In view of continuous activities of Bhaurao in black-marketing of essential commodity (Kerosene), the Commissioner of Police (appellant No.2 herein), in exercise of power conferred on him by sub-section (1) read with Clause (b) of sub-section (2) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as the Act ) directed that the said Bhaurao be detained. Grounds of detention were sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplies of essential commodities to the community , it was necessary to detain him and accordingly the order was passed. It was, therefore, submitted that the petition was liable to be dismissed, particularly when the detenu absconded and the order of detention along with grounds of detention and other documents could not be personally served and could not be executed. HIGH COURT JUDGMENT 8. The High Court, by the impugned order, held that the detenu was not entitled to know the grounds on which the order of detention had been passed, unless he surrendered. The Court, however, proceeded to state that it perused the grounds of detention with a view to satisfy itself about the legality of the order of detention. The Court noted that the authorities made the record available to the Court and the Court had carefully examined it. The Court then concluded; We find that the present petition can be entertained at preexecution stage . 9. The High Court considered the relevant provisions of the Act as also the Maharashtra Kerosene Dealers Licensing Order, 1966 and the Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993. It observed that if the cases institute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be served upon the detenu, was a material factor. The detenu absconded himself and successfully avoided service of order of detention, grounds of detention and relevant documents in support of the order. The authorities were, therefore, constrained to affix the order at a conspicuous place of residence of the detenu. The said factor was crucial and the High Court should have refused to exercise jurisdiction in favour of the detenu. 14. On merits, it was contended that several cases had been instituted against the detenu under the 1955 Act and consistent conduct of the detenu revealed that he continued to indulge in black marketing activities. If it is so, a preventive action under the Act was called for and such action could not have been interfered with by the High Court. It was also submitted that the High Court was not right in observing that the detenu was ill-treated when he was arrested in connection with Crime No. 3022 of 2006 at Police Station, Wadi (Nagpur) and there was custodial violence by police authorities. But, even if it is assumed to be true, the detenu could have taken appropriate action in accordance with law. That, however, does not make order of deten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck-marketing activities. Hence, even if this Court is convinced that the High Court was not right in exercising jurisdiction at pre-execution stage, this Court may not interfere with the decision of the High Court. WHETHER HIGH COURT WAS RIGHT IN QUASHING ORDER OF DETENTION? 16. Having heard learned counsel for the parties and having given anxious consideration to the facts and circumstances of the case, we are clearly of the view that the High Court exceeded its jurisdiction in entertaining the writ-petition and in quashing and setting aside the order of detention at pre-execution stage. It cannot be gainsaid that the order of detention has been made against the detenu in exercise of power under the Act since the Detaining Authority was satisfied that detention of the writ-petitioner was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities to the community i.e. selling of kerosene in black market. True it is that such order must be preventive and not punitive in nature. But the Court must be conscious and mindful that the satisfaction of the Detaining Authority is subjective in nature and the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects the person or authority who has detained another person to bring the body of the prisoner before the Court so as to enable the Court to decide the validity, jurisdiction or justification for such detention. The principal aim of the writ is to ensure swift judicial review of alleged unlawful detention on liberty or freedom of the prisoner or detenu. 20. In Cox v. Hakes, (1890) 15 AC 506 : 60 LJQB 89, Lord Halsbury propounded: For a period extending as far back as our legal history, the writ of habeas corpus has been regarded as one of the most important safeguards of the liberty of the subject. If upon the return to that writ it was adjudged that no legal ground was made to appear justifying detention, the consequence was immediate release from custody. If release was refused, a person detained might make a fresh application to every judge or every Court in turn, and each Court or Judge was bound to consider the question independently and not to be influenced by the previous decisions refusing discharge. If discharge followed, the legality of that discharge could never be brought in question. No writ of error or demurrer was allowed. 21. In R v. Secretary of State for H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or lord of Parliament has privilege of peerage or Parliament against being compelled to render obedience to a writ of habeas corpus directed to him . 24. In Greene v. Secretary of State for Home Affairs, (1941) 3 All ER 388 : 1942 AC 284, Lord Wright observed: The inestimable value of the proceedings is that it is the most efficient mode ever devised by any system of law to end unlawful detainments and to secure a speedy release where the circumstances and the law so required . 25. The underlying object of the writ of habeas corpus has been succinctly explained by Dua, J. in Sapmawia v. Deputy Commissioner, Aijal, (1971) 1 SCR 690, in the following words: The writ of habeas corpus is a prerogative writ by which, the causes and validity of detention of a person are investigated by summary procedure and if the authority having his custody does not satisfy the court that the deprivation of his personal liberty is according to the procedure established by law, the person is entitled to his liberty. The order of release in the case of a person suspected of or charged with the commission of an offence does not per se amount to his acquittal or discharge and the authorities are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof. Hatanjali Sastri, C.J., pointed out in State of Madras v. V.G. Row A.I.R. 1952 SC 196 : 1952 SCR 597 that preventive detention is largely precautionary and based on suspicion and to these observations may be added the following words uttered by the learned Chief Justice in that case with reference to the observations of Lord Finlay in Rex v. Halliday, 1917 AC 260 namely, that the court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based . This being the nature of the proceeding, it is impossible to conceive how it can possibly be regarded as capable of objective assessment. The matters which have to be considered by the detaining authority are whether the person concerned, haying regard to his past conduct judged in the light of the surrounding circumstances and other relevant material, would be likely to act in a prejudicial manner as c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. The object is not to punish a man for having done something but to intercept before he does it, and to prevent him from doing so. It, therefore, becomes imperative on the part of the detaining authority as well as the executing authority to be very vigilant and keep their eyes skinned but not to turn a blind eye in securing the detenue and executing the detention order because any indifferent attitude on the part of the detaining authority or executing authority will defeat the very purpose of preventive action and turn the detention order as a dead letter and frustrate the entire proceedings. Inordinate delay, for which no adequate explanation is furnished, led to the assumption that the live and proximate link between the grounds of detention and the purpose of detention is snapped . [See : P.U. Iqbal v. Union of India and Ors., (1992) 1 SCC 434; Ashok Kumar v. Delhi Administration, (1982) 2 SCC 403 and Bhawarlal Ganeshmalji v. State of Tamilnadu, (1979) 1 SCC 465]. PREVENTIVE DETENTION : NECESSARY EVIL 30. Liberty of an individual has to be subordinated, within reasonable bounds, to the good of the people. The framers of the Constitution were conscious of the practical ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isfaction can be tested judicially. GROUNDS OF CHALLENGE 34. An order of detention can be challenged on certain grounds, such as, the order is not passed by the competent authority, condition precedent for the exercise of power does not exist; subjective satisfaction arrived at by the Detaining Authority is irrational, the order is mala fide; there is nonapplication of mind on the part of the Detaining Authority in passing the order; the grounds are, or one of the grounds is, vague, indefinite, irrelevant, extraneous, nonexistent or stale; the order is belated; the person against whom an order is passed is already in jail; the order is punitive in nature; the order is not approved by State/Central Government as required by law; failure to refer the case of the detenu to the Board constituted under the statute; the order was quashed/revoked and again a fresh order of detention was made without new facts, etc. CHALLENGE TO DETENTION-ORDER PRIOR TO EXECUTION 35. A writ of habeas corpus may be prayed in case of actual detention or imprisonment of a person if it is illegal or unconstitutional. But if a person is not actually detained, obviously a writ of habeas corpus would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of Gujarat in Ved Prakash v. State of Gujarat, AIR 1987 Guj 253, this Court observed: When a right is so guaranteed, it has to be understood in relation to its orbit and its infringement. Conferring the right to life and liberty imposes a corresponding duty on the rest of the society, including the State, to observe that right, that is to say, not to act or do anything which would amount to infringement of that right, except in accordance with the procedure prescribed by law. In other words, conferring the right on a citizen involves the compulsion on the rest of the society, including the State, not to infringe that right. The question is at what stage the right can be enforced? Does a citizen have to wait till the right is infringed? Is there no way of enforcement of the right before it is actually infringed? Can the obligation or compulsion on the part of the State to observe the right be made effective only after the right is violated or in other words can there be enforcement of a right to life and personal liberty before it is actually infringed? What remedy will be left to a person when his right to life is violated? When a right is yet to be violated, but is threate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... custody again, would it be proper for the court to reject the earlier writ petition and tell him that his petition has become infructuous and he had no alternative but to surrender and then petition for a writ of habeas corpus? The difference of the two situations, as we have seen, have different legal significance. If a threatened invasion of a right is removed by restraining the potential violator from taking any steps towards violation, the rights remain protected and the compulsion against its violation is enforced. If the right has already been violated, what is left is the remedy against such violation and for restoration of the right . (emphasis supplied) 38. Alka Subhash Gadia was indeed a leading decision of this Court on the point. This Court in that case stated that if in each and every case a detenu is permitted to challenge an order of detention and seek stay of the operation of the order before execution, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period . 39. The Court, after considering several cases, observed that with a view to prevent possible abuse of draco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist that the aggrieved person first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary, extraordinary, and equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant authorities earlier dealt in detail with the circumstances under which these extraordinary powers are used and are declined to be used by the courts. To accept Shri Jain s present contention would mean that the courts should disregard all these time-honoured and well-tested judicial self-restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri Sibbal for the appellants, as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not even alleged that the order is sought to be executed against a wrong person. 44. According to the High Court, however, the order was passed for a wrong purpose . It was contended before the High Court on behalf of the detenu that certain offences had been registered against the detenu and they were under investigation. The report of the Chemical Analyzer was not received and yet the Detaining Authority took into account those cases. It was further submitted that offences were registered against the detenu in July, 2003, September, 2005 and May, 2006 and no preventive action was thought necessary to be taken by the authority at any stage. It was when the detenu was arrested in 2006 and a complaint was made against custodial violence meted out to him by police authorities while he was in custody that with a view to save the skin of erring police officials that an illegal order of detention was passed. Thus, it was made for wrong purpose and not with a view to preventing the writ petitioner from indulging in black marketing of kerosene. The High Court found considerable force in the submission. The High Court, with respect, went wrong in observing that once a detenu ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case on self-same facts, the detaining authority cannot take recourse to two parallel and simultaneous proceedings nor can take re-course to a ground which is the subject matter of a criminal trial. Thus on this ground also the impugned order of detention cannot be sustained . 47. Unfortunately, the attention of the High Court was not invited to Hardhan Saha, wherein the Constitution Bench did not approve the law laid down by this Court in Biram Chand. Referring to larger Bench decisions, the Court stated; Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu. The recent decisions of this Court on this subject are many. The decisions in Borjahan Gorey v. The State of West Bengal reported in (1972) 2 SCC 550, Ashim Kumar Ray v. State of West Bengal reported in (1973) 4 SCC 76, Abdul Aziz v. The Distt. Magistrate, Burdwan and Ors. rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reventive detention to reach subjective satisfaction by the Detaining Authority. It has come on record that the detenu was called upon to execute a bond for good behaviour under Sections 110 and 111 of the Code of Criminal Procedure, 1973. It is, therefore, clear that the authorities had taken steps under the relevant law. But even otherwise, in our opinion, such questions may become relevant and can be considered after the order of detention is executed. 49. Similarly, if the detenu was illtreated when he was in custody in connection with any case registered against him under the 1955 Act, or there was custodial violence, it would not affect detention of the writpetitioner. Whether there was such custodial violence and whether police officers had abused their position can indeed be gone into by a competent authority or by a Court of law. That circumstance, however, will not make the order of detention invalid or for a wrong purpose . Externment proceedings initiated against the detenu under Section 59 of the Bombay Police Act, 1951 also would not make the action assailable. In our considered opinion, therefore, this was not a case in which interference was warranted at pre-exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the life of the community, prevention of smuggling activities, etc. Therefore, the jurisdiction of the court to grant relief to the detenu in such proceedings is indeed narrow and very much limited. Bail cannot be granted as a matter of common practice on considerations generally applicable to cases of punitive detention. Therefore, whenever the Court is of the view that prima facie the allegations made in the writ petition disclose a serious defect in the order of detention, the wiser and the more sensible and reasonable course to adopt would invariably be to expedite the hearing of the writ petition and deal with the merits without any delay. (emphasis supplied) 53. The Court, however, held that it cannot be contended as a proposition of law that a writ Court has no jurisdiction to make an interim order giving the detenu the relief which the Court would be entitled to grant at the end of the proceedings. If the Court has jurisdiction to give the main relief to the detenu at the end of the proceedings, on principle and in theory, it is not easy to understand why the Court cannot give interim relief to the detenu pending the final disposal of his writ petition. The interim reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is served with the grounds of detention, he can challenge such order and Court will decide the legality or otherwise of the action. 58. From the foregoing discussion, in our judgment, the law appears to be fairly wellsettled and it is this. As a general rule, an order of detention passed by a Detaining Authority under the relevant preventive detention law cannot be set aside by a Writ Court at the pre-execution or pre-arrest stage unless the Court is satisfied that there are exceptional circumstances specified in Alka Subhash Gadia. The Court must be conscious and mindful of the fact that this is a suspicious jurisdiction i.e. jurisdiction based on suspicion and an action is taken with a view to preventing a person from acting in any manner prejudicial to certain activities enumerated in the relevant detention law. Interference by a Court of Law at that stage must be an exception rather than a rule and such an exercise can be undertaken by a Writ Court with extreme care, caution and circumspection. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order. 59. The cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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