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TMI Blog2008 (11) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondents has relied on the decisions of this Court in State of Maharashtra vs. Bhaurao Punjabrao Gawande AIR 2008 SC 1705, which has followed the decision of this Court in Additional Secretary to the Government of India & Ors. vs. Smt. Alka Subhash Gadia & Anr. 1992 (Suppl.1) SCC 496, and the other decisions of this Court in Rajinder Arora vs. Union of India & Ors. 2006 (4) SCC 796, Alpesh Navinchandra Shah vs. State of Maharashtra & Ors. 2007 (2) SCC 777, etc. 4. We have carefully perused the aforesaid decisions and we are of the opinion that the legal position regarding the power of this Court or the High Court to set aside a preventive detention order at the pre execution stage needs to be further explained. 5. Since the aforesaid decisions have basically followed the decision of this Court in Additional Secretary to the Government of India & Ors. vs. Smt. Alka Subhash Gadia & Anr. (supra), it would be useful to refer to the aforesaid decision. In paragraph 30 of the aforesaid decision in Smt. Alka Subhash Gadia's case (supra) this Court observed : "30. As regards his last contention, viz., that to deny a right to the proposed detenu to challenge the order of detent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenge 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 such orders are in operation only for a limited period. Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its 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 pre-execution 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. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on without disclosing the factual situation. In the same judgment this Court also observed : "Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes". (emphasis supplied) 12. In London Graving Dock Co. Ltd. vs. Horton (1951 AC 737 at page 761), Lord Mac Dermot observed : "The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Smt. Alka Subhash Gadia's case (supra) this Court only wanted to lay down the principle that entertaining a petition against a preventive detention order at a pre- execution stage should be an exception and not the general rule. We entirely agree with that proposition. However, it would be an altogether different thing to say that the five grounds for entertaining such a petition at a pre execution stage mentioned in Smt. Alka Subhash Gadia's case (supra) are exhaustive. In our opinion they are illustrative and not exhaustive. 17. If a person against whom a prevention detention order has been passed can show to the Court that the said detention order is clearly illegal why should he be compelled to go to jail? To tell such a person that although such a detention order is illegal he must yet go to jail though he will be released later is a meaningless and futile exercise. 18. It must be remembered that every person has a fundamental right of liberty vide Article 21 of the Constitution. Article 21, which gives the right of life and liberty, is the most fundamental of all the Fundamental Rights in the Constitution. Though, no doubt, restrictions can be placed on these right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) : " ....the power of preventive detention is a frightful and awesome power with drastic consequences affecting personal liberty, which is the most cherished and prized possession of man in a civilized society. It is a power to be exercised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused." 26. In Francis Coralie Mullin vs. W.C. Khambra and others AIR 1980 SC 849 this Court observed (vide para 5) : "No freedom is higher than personal freedom and no duty higher than to maintain it unimpaired" 27. Apart from the above, in our opinion non-placement of the relevant materials before the Detaining Authority vitiates the detention order, and grounds (iii) & (iv) of the decision of this Court in Alka Subhash Gadia's case (supra) are attracted in such a situation as held in Rajinder Arora vs. Union of India (supra) (vide para 25 of the said decision). Hence, even if we treat the five exceptions mentioned in Alka Subhash Gadia's case (supra) as exhaustive, the present case is covered by the 3rd and 4th exceptions of those five exceptions, as held in Rajinder Arora's case (supra). 28. Learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cretary of State for Home Affairs; ex parte O'Brien (1923) 2 KB 361 : 1923 AC 603 : 92 LJKB 797, Scrutton, LJ observed: "The law in the country has been very zealous of any infringement of personal liberty. This case is not to be exercised less vigilantly, because the subject whose liberty is in question may not be particularly meritorious. It is indeed one test of belief in principles if you apply them to cases with which you have no sympathy at all. You really believe in freedom of speech if you are willing to allow it to men whose opinion seem to you wrong and even dangerous; and the subject is entitled only to be deprived of his liberty by due process of law, although that due process if taken will probably send him to prison. A man undoubtedly guilty of murder must yet be released if due forms of law have not been followed in his conviction. It is quite possible, even probable, that the subject in this case is guilty of high treason; he is still entitled only to be deprived of his liberty by due process of law. (emphasis supplied) 31. As early as in 1627, the following memorable observations were made by Hyde, C.J. in Darnel, Re, (1627) 3 St Tr. 1: "Whether the commitm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in ground `C' entitled `Non-placement of relevant material documents by Sponsoring Authority leading to consequent non- consideration thereof by the Detaining Authority'. 36. A large number of documents have been referred therein, but we agree with Mr. Shekhar Nafade, learned counsel for the respondent that it is not necessary for the Detaining Authority to consider or refer to the materials which were irrelevant to the activities mentioned in Section 3(1) of the Act. However, we agree with Shri Soli Sorabjee that some of the materials were relevant and should have been placed before the Detaining Authority and considered by him, but they were neither placed before the Detaining Authority nor were they considered. 37. The most important of these documents which were not placed before the Detaining Authority were the retractions given by Kuresh Rajkotwala to the DRI dated 4.12.2006, Kuresh Rajootwala's affidavit filed before the learned Addl. Chief Metropolitan Magistrate, Esplanade, Mumbai, Bharat Chavhan's retraction to DRI dated 9.5.2008, Bipin Thaker's retraction to DRI dated 19.1.2008, Sharad Bhoite's retraction dated 24.4.2007 before the Addl. Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order of detention. Questions whether the confessional statements recorded on December 13 and 14, 1977 were voluntary statements or were statements which were obtained from the detenu under duress or whether the subsequent retraction of those statements by the detenu on December 22, 1977 was in the nature of an after-thought, were primarily for the detaining authority to consider before deciding to issue the impugned detention order but since admittedly the aforesaid vital facts which would have influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority it must be held that there was non-application of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority thereby rendering the impugned detention order invalid and illegal". 41. It may be noted that in the above decision, this Court has held that it was the duty of the Customs Officer to have reported the retraction of the statements to the Detaining Authority. Hence, even if the retractions in the present case were not placed before the Detaining Authority that will not be of any avail to the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2008 decided on 22.8.2008 by this Bench. In that decision it was observed that the activities of the accused who was said to have indulged in unlawful activities were of the year as far back as 2002, and thereafter the appellant had not indulged in similar activities. Hence it was held that continuing the order of detention today would be an exercise of futility and the same should not be given effect to any further. 48. Shri Soli Sorabjee also relied on a decision of this Court in Alpesh Navinchandra Shah vs. State of Maharashtra and others 2007(2) SCC 777(vide para 57) etc. 49. Shri Soli Sorabjee, learned counsel, invited our attention to ground `B' in the Writ Petition in which it has been stated that the petitioner has not done any business after November 2006 when the alleged last consignment was cleared by the petitioner. This averment has not been rebutted in the counter affidavit filed by the respondent. Hence, Shri Sorabjee submitted that there is now no live link between the alleged prejudicial activities and the purpose of detention now. He has also relied upon the decisions of this Court in T.A. Abdul Rehman vs. State of Kerala and others AIR 1990 SC 225 State ..... X X X X Extracts X X X X X X X X Extracts X X X X
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