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TMI Blog2013 (8) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... ase (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. - Writ Petition (CRL) NO.137 OF 2011, W.P. (CRL) NOS.35, 138, 220 & 249 OF 2011, AND W.P. (CRL) NO.14 OF 2012, Crl.A. NO.932 OF 2013 (@ SLP (CRL) NO.1909 OF 2011), Crl.A. NO.931 OF 2013 (@ SLP (CRL) NO.1938 OF 2011), Crl.A. NO.930 OF 2013 (@ SLP (CRL) - - - Dated:- 16-7-2013 - CJI. Altamas Kabir, J. Chelameswar And Gyan Sudha Misra,JJ. JUDGMENT Altamas Kabir, CJI. 1. Leave granted in the Special Leave Petitions. Transfer Petition (Crl.) Nos.38-39 are allowed. 2. The common thread which runs through these matters being heard together is the challenge thrown in each matter to detention orders passed either against the Petitioners themselves or the pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 4. Mr. Rohatgi submitted that if it is to be accepted that challenge to a detention order could be made at the pre-execution stage only on the five exceptions mentioned in Alka Subhash Gadia's case, it would result in restrictions being imposed on the powers vested in the Supreme Court under Article 32 and in the High Courts under Article 226 of the Constitution. Mr. Rohatgi submitted that with the passage of time since the decision rendered in Alka Subhash Gadia's case in 1992, new grounds of challenge, such as absence of live link and intervention of Settlement Proceedings under the Customs Act, 1962, have been canvassed which could not have been contemplated in Alka Subhash Gadia's case and cannot be ignored in the facts of cases now being brought before the Courts. Mr. Rohatgi submitted that a detenue must, therefore, be held to have the right to challenge the detention order passed against him, at the pre-execution stage, on different grounds in addition to the five exceptions carved out in Alka Subhash Gadia's case, but each matter would have to be considered and decided on its own set of facts. 5. In all these cases, the common refrain is that the object sought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no necessity for issuance of detention orders by resorting to preventive detention law, on which count the impugned order of detention stands vitiated. The Petitioner prayed that the impugned detention order No. F.673/89/97-CUS.VIII dated 18.8.1997, issued by the Joint Secretary, Government of India, under Section 3(1) of the COFEPOSA Act, 1974, be declared void, unconstitutional and illegal in the interest of justice. 8. The next case is that of Nitish Prakashchand Kothari [W.P.(Crl) No. 138 of 2011], who is himself the proposed detenue under the detention order dated 3.12.2009. The said order has been challenged on several grounds, including the ground relating to the existence of a live link between the preventive detention order and the circumstances prevailing today. Mr. Rohatgi submitted that in the present case more than three and a half years have passed since the impugned detention order was passed and there is nothing on record to indicate that the proposed detenue had or was likely to indulge in activities described in the detention order. Accordingly, the order of detention passed in respect of the Petitioner is required to be quashed. 9. In Suresh D. Hotwani's c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the COFEPOSA Act, 1974, because of the long delay during which there was nothing on record to indicate that the proposed detenue had indulged in activities similar to those indicated in the detention order. Mr. Rohatgi submitted that on the ground of delay in serving the detention order, the same had lost its very purpose and was, therefore, liable to be quashed. 11. S.L.P. (Crl.) No. 1909 of 2011 has been filed by Anil Kailash Jain against the judgment and order dated 5.1.2011 passed by the Bombay High Court in Criminal Writ Petition No. 2675 of 2010, whereby several Writ Petitions, including that filed by Suresh D. Hotwani, were disposed of. In the instant case, the detention order was passed on 13.12.2007 and the challenge thereto was taken up for consideration by the Bombay High Court along with several other matters, including the Writ Petition filed by Suresh D. Hotwani (Criminal Writ Petition No. 1645 of 2010) and Ajay Bajaj (Criminal Writ Petition No. 103 of 2009). The same were disposed of by the Bombay High Court by a common judgment dated 5.1.2011. In fact, the same arguments, as were advanced in Suresh D. Hotwani's case, were advanced regarding the absence of a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Verma, the detention order has now been challenged in these Special Leave Petitions on grounds which are similar to the grounds taken in the earlier matters, namely, that seven years had passed since the detention order had been issued for a limited period of one year. The order was also challenged on the ground that the High Court had failed to appreciate the fact that an order of preventive detention is not to punish the detenue for having committed an offence but to prevent him from doing so. It was submitted that the cause of action for challenge of the detention order at this stage was on grounds which were totally different from those taken in the Writ Petition before the High Court. Reliance was placed on several decisions of this Court in Maqsood Yusuf Merchant (supra), Yusuf Razak Dhanani Vs. Union of India [W.P.(Crl.) No. 132 of 2007] and Sanjeev Jain Vs. Union of India [Crl. Appeal No. 1060 of 2010, wherein the detention orders were quashed on account of absence of any live link between the detention order and the attempt now being made to detain the proposed detenues on the basis of the same order, without any fresh material to indicate that after the passing of the det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reventive purposes, the same has been issued for punitive purposes, since the detention order issued on 23.1.2012, was in respect of evidence recorded between October and November, 2010, in respect whereof the Petitioner was arrested on 2.11.2010 and enlarged on bail on 14.12.2010. It was submitted, as in other cases, that there is nothing on record to indicate that anything has been done by the Petitioner, after the detention order was passed till date. The other relevant ground of challenge is that when the Settlement Commission under the Customs Act, 1962, had granted conditional immunity under Sub-section (1) of Section 127H of the Customs Act, there could be no further ground for either issuing or continuing with the detention order, which arises out of the facts in respect of which the Settlement Commission had granted immunity to the Petitioner. 17. Writ Petition (Crl.) No. 14 of 2012, filed by Mohan Lal Arora, is for quashing Detention Order No. 673/18/2011-CUS.VIII dated 8.9.2011, on the same grounds, as urged in the other matters relating to delay in issuing the detention order on stale grounds. It was also contended that the Detaining Authority acted merely as a rubber ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, Mumbai. On 3.2.2011, he was granted bail by the Court of Sessions and, while the matter was pending, the impugned detention order was passed on 16.9.2011, after a lapse of more than nine months from the date of his arrest. The Petitioner has also taken a ground that certain vital and material documents, as indicated in Ground A of the Petition, had not been placed before the Detaining Authority, as a result of which the detention order stood vitiated on the ground of non-application of mind. Reference was made to the several decisions of this Court in Asha Devi Vs. K. Shivraj [(1979) 1 SCC 222]; State of U.P. Vs. Kamal Kishore Saini [(1988) 1 SCC 287]; and Ayya alias Ayub Vs. State of U.P. [(1989) 1 SCC 374], and several other cases, where this Court had quashed the orders of detention, when relevant documents which could have had a direct bearing on the detention order, had not been placed before the Detaining Authority. It was urged that, in the instant case, the retraction of the detenue on various dates was not placed before the Detaining Authority, which not only prejudiced the detenue, but also resulted in the illegal order of preventive detention being passed against him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to the decision of this Court in Bhawarlal Ganeshmalji Vs. State of Tamil Nadu [(1979) 1 SCC 465], wherein it had been urged that the detention order was liable to be quashed on the ground of delay since it had been passed in 2009 and had not been executed till that date. Mr. Malhotra pointed out that this Court held that while it is true that the purpose of detention under the COFEPOSA Act is not punitive but preventive and that there must be a live and proximate link between the grounds of detention alleged by the Detaining Authority and the purpose of detention, and that in appropriate cases it may be assumed that the live link is snapped, one may strike down an order of detention, but where the delay is found to be on account of the recalcitrant conduct of the detenue in evading arrest, it may be considered that the link had not snapped, but had been strengthened. In the said case, the detenue was found to be absconding and action was accordingly taken under Section 7 of the COFEPOSA Act and he was declared to be a proclaimed offender. Despite the several efforts made to apprehend the proposed detenue, he could not be arrested till he surrendered on 1st February, 1978, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er that he is absconding with the intention of evading his arrest. Accordingly, it would be wrong to contend or presume that the accused, who was absconding, would not continue or was not continuing his prejudicial activities and that the live and proximate link was snapped. 26. It was lastly submitted that for the purpose of detaining a person under the COFEPOSA Act, a Warrant of Arrest is issued under Section 4 of the Act and the said warrant continues to be in force unless the same is executed, withdrawn or cancelled. Once a valid warrant had been issued, it could not be taken as a ground to quash the detention order simply because the detenue had been successful in evading arrest or detention. The learned ASG, therefore, prayed that the Writ Petitions filed by the Petitioners, as also the Appeals and the Transfer Petitions, were liable to be dismissed. 27. Out of the 11 matters heard together, detention orders had been passed by the State of Maharashtra, under delegated powers, in six matters. Dealing with each case on its own merit, Mr. B.H. Marlapalle, learned Senior Advocate, who appeared on behalf of the State of Maharashtra in all the matters, submitted that in Nitish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 21.8.2006, but was received in the Office of the Commissioner of Police on 6.4.2007, and was received, in turn, by Vashi Police Station on 20.4.2007. Mr. Marlapalle submitted that when an attempt was made to serve the detention order on the Appellant at his permanent address on 30.5.2007, the Appellant was reported not to be living at the address given and the occupant of the room, one Neena Modi, informed the police officer concerned that the detenue was not staying at the said address and that the Appellant had given five different addresses, but the address at Vashi, Navi Mumbai had not been furnished. However, Mr. Marlapalle accepted the fact that there is no explanation provided as to why the detention order could not be executed by taking recourse to Section 7 of the COFEPOSA Act, 1974, or why steps were not taken to declare the Appellant as an absconder from 9.7.2007, till he approached the High Court in Writ Petition No. 3233 of 2010. 29. In the third case, which is S.L.P.(Crl.) No. 1909 of 2011 (now Appeal), filed by one Anil Kailash Jain, the detention order was passed on 13.12.2007, on the ground of duty evasion. Mr. Marlapalle submitted that a joint proposal had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2011, when the Writ Petition came to be filed before this Court. Mr. Marlapalle submitted that this is one of those cases in which the proposed detenue had approached the Settlement Commission under Section 127H of the Customs Act, 1962 and a settlement had been arrived at and the Settlement Commission had granted immunity from prosecution under the Customs Act to the Petitioner and the co-accused. It is on that basis that a representation was made on 11.11.2011 for revocation of the detention order dated 23.12.2010. Mr. Marlapalle submitted that it is not known as to whether the said representation was decided or not. No submission was made by Mr. Marlapalle on the issue as to whether the detention order was sustainable after the Settlement Commission had granted immunity from prosecution under the Customs Act, 1962. 32. Writ Petition (Crl.) No. 35 of 2011 and S.L.P. (Crl.) No. 2442 of 2012 (now Appeal), have been filed challenging the detention order passed under Section 3(1) of the COFEPOSA Act on 12.3.2001. Although, the petition has been filed by one Shri Suresh D. Hotwani, the name of the proposed detenue is Nitesh Ashok Sadarangani. The main ground of challenge is that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for the protection of the law. 35. Mr. Marlapalle lastly submitted that, in each case, there was a likelihood of the proposed detenues being released on bail, which was also one of the reasons which prompted the Detaining Authorities from passing the detention orders impugned in these several proceedings. 36. In addition to the above, Mr. Marlapalle drew the Courts' attention to Section 5A of the National Security Act, 1980, hereinafter referred to as "NSA Act, 1980", which provides that the grounds of detention are severable on certain defined grounds so as not to affect the validity of the detention order as a whole. Reference was also made to Section 7 of the Act which empowers the Central Government to pass appropriate orders in relation to absconding persons, which are in pari materia with the provisions of Section 7(1)(b) of the COFEPOSA Act, 1974. 37. Mr. Marlapalle submitted that all the Writ Petitions, Appeals and Transfer Petitions were liable to be dismissed. 38. The grounds taken on behalf of the several Petitioners/ Appellants may be encapsulated in the following manner: (i) That, the detention orders passed in respect of the several proposed detenues were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and vested in the superior Courts to protect all citizens and non-citizens, against arbitrary action. As submitted by Mr. Rohatgi at the very beginning of his submissions, we had indicated that law is never static, but dynamic and that the right to freedom being one of the most precious rights of a citizen, the same could not be interfered with as a matter of course and even if it is in the public interest, such powers would have to be exercised with extra caution and not as an alternative to the ordinary laws of the land. 40. With regard to the second, third and sixth grounds of challenge, I had also dealt at length on whether a preventive detention order, which was not meant to be punitive, but preventive, could be executed after a lapse of several years during which period the live link between the order and the objects sought to be achieved by executing the order, was snapped. In my view, since it was the intention of the Sponsoring Authorities that a person having criminal propensities should be prevented from indulging in the same to the prejudice of the public at large and from also indulging in economic offences against the Revenue, it would have to be established that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secution under the Act to the said applicant, after considering the matter from its various angles. Once such immunity from criminal prosecution is granted, the question of preventive detention for the same cause of action loses its relevance, unless the proposed detenue under the provisions of the COFEPOSA Act, 1974, or any other ancillary provisions, is involved in fresh transgression of the law. 43. At this stage, I may take notice of the provisions of Sections 6 and 7 of the COFEPOSA Act, 1974. Section 6 of the said Act provides as follows: "6. Detention order not to be invalid or inoperative on certain grounds No detention order shall be invalid or inoperative merely by reason (a) That the person to be detained thereunder is outside the limits of the territorial jurisdiction of the Government or the officer making the order of detention, or (b) That the place of detention of such person is outside the said limits." 44. Section 7, on the other hand, deals with matters which are relevant to the facts of this case, since when a detention order cannot be executed against the proposed detenue, it may be presumed that he was absconding. Section 7 deals with the powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to take recourse to either the provisions of the Code of Criminal Procedure relating to absconding persons or pass an order directing the person concerned to appear before the concerned officer and on the detenue's failure to do so, to inflict punishment with imprisonment for a term which could extend to one year or with fine or both. 47. The provisions of Sections 6 and 7 of the National Security Act, 1980, are identical to the provisions of Sections 6 and 7 of the COFEPOSA Act, 1974. 48. In my view, the said provisions clearly enumerate the powers vested in the Authorities when a proposed detenue absconds. That, in my view, is the ordinary law of the land, and not preventive detention, which is meant to prevent the commission of offences, and not to punish an individual for violation of statutory provisions. Accordingly, in my view, the submissions made on behalf of the Union of India and the State of Maharashtra, cannot be accepted and absconsion cannot, therefore, be made a ground for making an order of preventive detention. Neither in Dropti Devi's case (supra) nor in Amrit Lal Manchanda's case or in M. Ahamedkutty's case had the above-mentioned provisions been brought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst him. The two principles stand on different footings. In the first place, the proposed detenue is detained without being made an accused in connection with any particular case, but to prevent him from committing an offence, whereas in the second place, a person actually charged with having committed an offence is on the run to avoid the consequences of his criminal acts. Once this difference is appreciated, an order of detention passed and remaining unexecuted for several years becomes open to question regarding its executability. If the intention of the authorities in passing a detention order is to prevent the commission of an offence by the proposed detenue in the future, then after the passage of a number of years, the concerned authorities will have to consider whether the order of preventive detention should at all be executed in the absence of any information that the proposed detenue had continued with unlawful activities. When the object of a preventive detention order is to prevent the proposed detenue from committing any offence, which is either against the national interest or the interest of society in the future and there is nothing on record to indicate that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at if a dispute leading to the issuance of the detention order is settled on the basis of a statutory provision such as Chapter XIVA of the Customs Act, 1962 and in terms of the Statute immunity from prosecution under Section 127H of the Act is given, the continuance of the order of detention would be completely illogical and even redundant. Accordingly, in such cases, the orders of preventive detention are liable to be quashed along with the Warrants of Arrest and Proclamation and Attachment issued under Sections 82 and 83 of the Code of Criminal Procedure. 53. In the light of the views expressed by me hereinbefore, the matters indicated hereinbelow are allowed and the orders of detention challenged therein are quashed on the ground that the said orders had become stale and the live link between the orders of detention and the object sought to be achieved by the said orders, stood snapped. Some of the orders had been made thirteen years ago and the very purpose of such detention orders had been rendered meaningless in the absence of any material that the proposed detenues had continued to indulge in activities which form the basis of the preventive detention orders. The followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Smuggling Activities Act 1974 (shortly referred to as the COFEPOSA Act 1974) could be challenged at the pre-execution stage confined to the five exceptions carved out by this Court in the case of Additional Secretary to the Govt. of India And Ors. vs. Alka Subhash Gadia And Anr. 1992 Supp (1) SCC 496 or whether such challenge could be maintained inter alia on other grounds. This Court (Bench) has already delivered a judgment on this question vide judgment and order dated 10.07.2012 reported in (2012) 7 SCC 533 that the right of a proposed detenue to challenge a preventive detention order passed against him may be challenged at the pre-execution stage on grounds other than those set out in paragraph 30 of the judgment in Alka Subhash Gadia s case and it was held therein that the order of preventive detention can be challenged beyond the five conditions enumerated in Alka Subhash Gadia s case. To make it explicitly clear it may be reiterated that this Court has already held that the order of preventive detention can be challenged beyond the five grounds which have been enumerated in the case of Alka Subhash Gadia s case even at the pre-execution stage. 3. However, the next imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the proposed detenue as he was absconding and evading his arrest, then whether such detention order is fit to be quashed and set aside merely due to efflux of time rendering the order of detention a nullity in spite of existence of valid, legal and sustainable grounds for issuance of the detention order. 6. There is absolutely no difficulty in accepting the unequivocal position that the purpose of passing the order of preventive detention is not punitive but merely preventive which clearly means that if the authorities are in possession of sufficient materials indicating that the proposed detenue had been indulging in economic offences violating the provisions and jumping the riders imposed by the COFEPOSA Act or other Acts of similar nature, then whether such order can be allowed to be set aside merely due to long lapse of time accepting the plea that there is no live link between the order sought to be quashed and the intention of the authorities to detain the detenue by virtue of such detention order. This Court in a series of decisions, some of which have been referred to hereinafter have consistently dealt with this question and have been pleased to hold that merely becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court had allowed the writ petition filed by the respondents detenue therein and quashed the detention order restraining the appellants from enforcing the order. But, this Court overruled it and held that the judgment of the High Court was clearly unsustainable and hence was set aside. It was further held therein that the question as to whether it would be desirable to take the respondents (detenue) back to custody shall be taken by the Government within two months and appeal filed by the Union of India was allowed. 9. Similarly, in the case of Bhawarlal Ganeshmalji vs. State of Tamil Nadu And Anr. (1979) 1 SCC 465, the appellant had evaded arrest and surrendered 3 years after making of the order of detention but this Court had held that the order was still effective if detenu himself were to be blamed for delay. It is no doubt true that in this matter, the Court had further held that the purpose of detention under the COFEPOSA is not punitive but preventive and there must be a live and proximate link so that if there is a long and unexplained delay between the order of detention and arrest of the detenue, the order of detention may be struck down unless the grounds indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d again obtained ad interim relief on 10.1.1997 which was extended from time to time. The writ appeal has not been still disposed of. 5. When the writ petition was filed, the respondent had not surrendered. Under these circumstances, the proper order which was required to be passed was to call upon the respondent first to surrender pursuant to the detention order and then to have all his grievances examined on merits after he had an opportunity to study the grounds of detention and to make his representation against the said grounds as required by Article 22(5) of the Constitution .. 12. In the matter of Hare Ram Pandey vs. State of Bihar Ors., (2004) 3 SCC 289, effect of delay in execution of detention order was the principal issue for consideration before the court. This Court held that the plea of delay taken by the person who himself was responsible for the delay having adopted various dilatory tactics cannot be accepted. In this matter, the question regarding service of the detention order after expiry of the period specified therein was a subject matter of consideration wherein it was contended that the order was yet to be executed. This Court held that the grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of detention was fit to be quashed and set aside and merely the length of time and liberty to challenge the same at the pre-execution stage which obviated the execution of the order of preventive detention cannot be the sole consideration for holding that the same is fit to be quashed. When a proposed detenue is allowed to challenge the order of detention at the pre-execution stage on any ground whatsoever contending that the order of detention was legally unsustainable, the Court will have an occasion to examine all grounds except sufficiency of the material relied upon by the detaining authorities in passing the order of detention which legally is the most important aspect of the matter but cannot be gone into by the Court as it has been allowed to be challenged at the pre-execution stage when the grounds of detention has not even been served on him. 15. Thus, if it is held that howsoever the grounds of detention might be weighty and sustainable which persuaded the authorities to pass the order of detention, the same is fit to be quashed merely due to long lapse of time specially when the detenue is allowed to challenge the order of detention even before the order of detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion and to make his representation against the said grounds as required by Article 22(5) of the Constitution of India . 17. The consequence that follows from the above is that each individual/proposed detenue will have to be served with the order of detention which had been passed against them alongwith the grounds and the materials relied upon by the authorities to pass the order of detention leaving it open to them to challenge the correctness of the order by way of a representation before the appropriate Authority or Court as per procedure prescribed. It is no doubt true that the materials relied upon at the relevant time would be on the basis of which the order of detention was passed so as to hold whether the materials were sufficient and justified or not but when the correctness of the order of detention is challenged in a court of law at the pre-execution stage, then setting aside the order of detention merely on the ground of long lapse of time might lead to grave consequences which would clearly clash with the object and purpose of the preventive detention laws. 18. Therefore, I am of the view that since this Court has already held that the order of detention can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive view is bound to operate as a convenient tool in the hands of the law-breakers which has not been approved earlier by this Court in the decisions referred to earlier. 19. A fall out and consequence of the aforesaid discussion, therefore, in my view, is that the order of detention cannot be quashed and set aside merely due to long lapse of time on the specious plea that there is no live link between the order of detention and the subsequent situation. I am, therefore, of the considered opinion that the order of detention is not fit to be quashed merely due to long lapse of time specially when the orders of detention have been allowed to be challenged even at the pre- execution stage on any ground. It is, therefore, legally appropriate to serve the order of detention on the proposed detenues leaving it open to them to challenge the same after the grounds are served on them so as to appreciate whether there had been sufficient materials before the detaining authorities to pass the orders of detention which were existing at the relevant time and approve or disapprove the same. In any view, events subsequent to the passing of the order of detention is neither before us nor would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners/appellants leaving it open to them to challenge the order of detention by taking recourse to the remedies available to them under the law by way of an independent proceeding including a representation against the order of detention before the competent authority which is the next legal stage after the order of detention is served on the proposed detenue. Holding it otherwise, in my view, would result into acceptance of a sordid situation akin to the adage of Let be gone be bygone which cannot be swallowed as that would clearly be defeating the very object and purpose of the preventive detention laws encouraging the proposed detenue to stay away and twist the arms of law misusing the provisions to their advantage. All the matters are consequently fit to be dismissed and are dismissed leaving it open to the Petitioners/Appellants to take recourse to remedies available to them in accordance with the provisions and procedure established by law after the grounds of detention are served on them. Chelameswar, J. The task of this Court to maintain a balance between liberty and authority is never done, because new conditions today upset the equilibriums of yesterday. The see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h proxy) may not be heard to advance such arguments in view of the fact that such delay as is complained of is a consequence of the fact that the proposed detenus evaded the process of law by absconding. 7. Personal liberty is the most valuable fundamental right guaranteed under the Constitution. Deprivation of such liberty is made impermissible by the Constitution except as authorised under the provisions of Articles 20, 21 and 22. Deprivation of personal liberty by incarceration as a penalty for the commission of an offence is one of the recognised modes by which State can abridge the fundamental right of personal liberty. Even in such case the authority of the state is circumscribed by the limitations contained under Articles 20 and 21 of the Constitution of India. 8. Article 22 of the Constitution recognises the authority of the State to preventively detain a person notwithstanding the fact that such a person is neither convicted for the commission of any offence nor sentenced in accordance with law. The authority of the State to resort to such preventive detention is more stringently regulated by the dictates of Article 22. The nature and scope of the authority to preventi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recedent to the exercise of the power of detention is not an objective determination of the necessity of detention for a specified purpose but the subjective opinion of the detaining authority, and if a subjective opinion is formed by the detaining authority as regards the necessity of detention for a specified purpose, the condition of exercise of the power of detention would be fulfilled. This would clearly show that the power of detention is not a quasi-judicial power. ]. Therefore, necessarily such an action is always based on some amount of suspicion or anticipation . Hence, the satisfaction of the State to arrive at a conclusion that a person must be preventively detained is always subjective. Nonetheless, the legality of such subjective satisfaction is held by this Court to be amenable to the judicial scrutiny in exercise of the jurisdiction conferred under Articles 32 and 226 of the Constitution on certain limited grounds. 10. One of the grounds on which an order of preventive detention can be declared invalid is that there is no live nexus between (1(b) In Additional Secretary to the Government of India and Others Vs. Smt. Alka Subhash Gadia and Another 1992 Supp (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of time after such orders came to be passed. 13. Whether the test of live nexus developed by this Court in the context of examining the legality of the order of preventive detention can be automatically applied to the question of the legality of the execution of the preventive detention orders where there is a considerable time gap between the passing of the order of preventive detention and its execution is the real question involved in these matters. To answer the question, we must analyse the probable reason for the delay in executing the preventive detention orders. 14. There could be two reasons which may lead to a situation by which the preventive detention order passed by the competent authorities under the various enactments could remain unexecuted, (1) the absconding of the proposed detenu from the process of law (2) the apathy of the authorities responsible for the implementation of the preventive detention orders. 15. The legislature was conscious of the fact that it can happen in some cases that the execution of the preventive detention order could be scuttled by the proposed detention either by concealing himself or absconding from the process of law. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an also by notification of official gazette direct proposed detenu to appear before an officer specified in the said notification at such place and time. Failure to comply with such notified direction on the part of the proposed detenu - without a reasonable cause - is made an offence punishable either with imprisonment for a term extending upto one year or with fine or both. 19. If a preventive detention order is to be quashed or declared illegal merely on the ground that the order remained unexecuted for a long period without examining the reasons for such non-execution, I am afraid that the legislative intention contained in provisions such as Section 7(b) of the COFEPOSA Act would be rendered wholly nugatory. Parliament declared by such provision that an (recalcitrant) individual against whom an order of preventive detention is issued is under legal obligation to appear before the notified authority once a notification contemplated under Section 7(b) of COFEPOSA Act is issued. We have already noticed that failure to appear without a reasonable excuse would be an offence and render the defaulter liable for a punishment of imprisonment. Holding that the preventive detention ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 24. Even in those cases where action such as the one contemplated under Section 7 of the COFEPOSA Act is not initiated, the same may not be the only consideration for holding the order of preventive detention illegal. This Court in Shafiq Ahmad Vs. District Magistrate, Meerut, (1989) 4 SCC 556 held so and the principle was followed subsequently in M. Ahamedkutty Vs. Union of India Anr., (1990) 2 SCC 1, wherein this Court opined that in such cases, the surrounding circumstances must be examined[ 14. In Shafiq Ahmad v. District Magistrate, Meerut relied on by appellant, it has been clearly held that what amounts to unreasonable delay depends on facts and circumstances of each case. Where reason f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st any detention order prior to the execution. The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the preexecution stage are necessarily very limited in scope and number, viz., where the courts 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 . ] 27. The question whether the five circumstances specified in Alka Subhash Gadia case (supra) 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.[ (2012) 7 SCC 533] 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 proce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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