SUBHASH POPATLAL DAVE v. UNION OF INDIA & ANR.

p. 596

A (WRIT PETITION (CRL.) N0.137 OF 2011) JULY 16, 2013 8

Preventive Detention - Test of live nexus in the context of examining the legality of the order of preventive detention - If 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 - Whether the proposed detenues who absconded or evaded the execution of the detention order, and subsequently challenged the order of detention at the pre-execution stage after a long lapse of time could take advantage of non-execution and challenge the detention order which remained unexecuted - Held (per majority): 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 sit"ation - Where proceedings 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 - FilL.B circumstances specified in Alka Subhash Gadia case are not exhaustive grounds on which a pre-execution scrutiny of the legality of · G preventive detention order can be undertaken - But it cannot 1 be held that such a scrutiny ought to be undertaken with reference to the cases of those who evaded the process of law - Those who evaded the process of law not to be heard

H 596

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SUBHASH POPATLAL DAVE v. UNION OF INDIA 597

by the Court to say that their fundamental rights are in jeopardy - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - ss.6 and 7 - National Security Act, 1980 - ss.6 and 7.

The question which initially arose for consideration before this Court in all these matters was whether a detention order passed under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) could be challenged at the pre-execution stage only on any of the five exceptions carved out by this Court in Atka Subhash Gadia case, or whether such challenge could be maintained on other grounds as well.

This Court (Bench) vide judgment and order dated 10.07.2012 held that the order of preventive detention can be challenged beyond the five conditions enumerated in Atka Subhash_Gadia's case. It was held that the order of preventive detention can be challenged beyond the five grounds enumerated in the case of Atka Subhash Gadia's case at the pre-execution stage. E

However, inasmuch as orders of preventive detention either under the COFEPOSA Act or the National Security Act, 1980 were pending unexecuted for varying periods ranging ·fr.om 2 to 10 years approximately, a· further question cropped up for consideration before this F Court as to whether the proposed detenues who absconded or evaded the execution of the detention order, and subsequently challenged the order of· detention at the pre-execution stage after a long lapse of time could take advantage of non-execution and G challenge the detention order which remained unexecuted. Whether the test of hive nexus developed by this Court in the context of examining the legality of the order H

p. 598

1Copy pinpoint1. It is essentially the sufficiency of materials relied upon for passing the order of detention which ought to weigh as to whether the order of detention was fit to be o quashed and set aside and merely the length of time and lil_>erty 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 E 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 F relied upon by the detaining authorities in passing the order of detention which legally is the most important aspect of i:he 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. [Para 14] [652-C-F] 'G

2Copy pinpoint2. 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

SUBHASH POPATLAL DAVE v. UNION OF INDIA · 599

. challenge the order of detention even before the order of detention is served on him, he would clearly be offered with a double-edged weapon to use to his advantage circumventing the order of detention. On the one hand, he can challenge the order of detention at the pre- execution stage on any ground, evade the detention in the process and subsequently would be allowed to raise the plea of long pendency of the detention order which could not be served and finally seek its quashing on the plea that it has lost its live link with the order of detention. This would_ render the very purpose of preventive c detention laws as redundant and nugatory which cannot be permitted. On the contrary, if the. order of detention is allowed to be served on the proposed detenue even at a later stage, it would be open for the proposed detenue to confront the materials or sufficiency of the material 0 relied upon by the authorities for passing the order of detention so as to contend that at the relevant time wheri the order of detention was passed, the same was based on non-existent or unsustainable grounds so as to quash the same. But to hold that the same is fit to be quashed merely because the same could not be executed for one E reason or the other specially when the proposed detenue was evading the detention order and indulging in forum shopping, the laws of preventive detention would surely be reduced into a hollow piece of legislation which is surely not the purpose and object of the Act. [Para 15] F [652-F-H; 653-A-D]

3Copy pinpoint3. Therefore, the order of detention is not fit to be quashed and should not be quashed merely due to long lapse of time but the grounds of detention ought to be G served on him once he gains knowledge that the order of detention is in existence so as to offer him a plank to challenge even the grounds of detention after which the courts will have to examine whether the order of detention which was passed at the relevant time but H

p. 600

A could not be served was based on sufficient material justifying the order of detention ..[Para 16] [653-E-F]

4Copy pinpoint4. Since the order of detention can be challenged on· p' any ground beyond five conditions even at the pre- B execution stage, it is in the fitness of things that the materials relied upon by the authorities be served on the proposed detenues so as to be considered before the appropriate forum whether the order of detention was fit to be sustained or not at the relevant time. In the process what has been the activities of the proposed detenue after the order of detention was passed against them so as to quash or sustain the same will have to be considered by the Authority considering the representation or the Court examining its sustainability. If the detenues have not indulged in any illegal nefarious activities giving rise to any economic offence, subsequently they have also not saddled with a fresh order of detention. But when the order of detention of a specific date relating to the relevant period is under adjudication, then the materials relied upon by the authorities at the relevant time alone should weigh with the courts as to whether the order of detention was justified or was fit to be quashed. It is also not possible to lose sight of the fact that if the petitioners and the appellants had preferred not to challenge the order of detention at the pre-execution stage or had not evaded arrest, the grounds of detention would have been served on them giving them a chance to challenge the same but if the petitioners and appellants have taken recourse to the legal remedy to challenge the order of detention even before it was executed, it is not open for them to contend that it should be quashed because there is no live link between the existing/subsequent situation and the previous situation when the order of detention was passed overlooking that they s11cceeded in pre-empting H" the order by challenging it at the pre-execution stage

SUBHASH POPATLAL DAVE v. UNION OF INDIA 601

never allowing the matter to proceed so as to examine the most crucial question whether there were sufficient material or grounds to pass the order of detention. Subsequent events or conduct in any view would be a' matter of consideration for the authorities before whom the representation is filed after the grounds are served on- the detenue and cannot be gone into when the only question raised is regarding the correctness and legality of _the order of detention. [Para 18] [654-E-H; 655-A-F]

5Copy pinpoint5. 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. The order of detention is not fit to be quashed merely due to long lapse of time specially when the orders of detention tiave 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 fact, there is no material before this Court even to arrive at a definite finding as to whether the proposed detenue have indulged in any activity after the passing of the order of detention nor it is· relevant in my view to take into account the subsequent events while considering the correctness of the order of detention passed at the relevant time. It would be equally hypothetical to observe that in case the orders of detention were served and approved by the Advisory Board and the same were challenged before the appropriate court, whether it would have been open for. the appropriate court to consider the subsequent conduct of the proposed detenue in order to hold that the

p. 602

A order of detention was fit to be quashed. Nevertheless, when the duty is cast upon this Court at this stage merely to consider whether the order of detention could be allowed to be challenged on other grounds, than what was delineated in Alka Subhash Gadia's case as also the fact whether the order of detention can be quashed on the ground of long lapse of time, it would not be legally appropriate to hold that the order of detention is fit to be quashed merely because there is no live link between the existing period and situation and the date on which the order of detention was passed. [Para 19] [655-G-H; 656-A-H; 657-A]

6Copy pinpoint6. It is deemed correct and legally appropriate to hold that the orders of detention are not fit to be quashed but the same are fit to be served on the petitioners/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. 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. [Para 20] [657-C-D, F]

Sunil Fulchand Shah vs. Union of India (2000) 3 SCC 409: 2000 (1) SCR 945;

G Sayed Taher Bawamiya vs. Govt. of India (2000) 8 sec 630 - overruled. Hare Ram Pandey vs. State of Bihar & Ors. (2004) 3 SCC 289: 2003 (6) Suppl. SCR 627; Union of India vs. Amrit H Lal Manchanda & Anr. (2004) 3 SCC 75: 2004 (2) SCR 422;

SUBHASH POPATLAL DAVE v. UNION OF INDIA 603

Union of India vs. Vidya Bagaria (2004) 5 SCC 577: 2004 A (1) Suppl. SCR 949; Union of India & Ors. vs. Atam Parkash & Anr. (2009) 1 SCC 585: 2008 (16) SCR 607; Bhawarlal Ganeshmalji vs. State of Tamil Nadu And Anr. (1979) 1 SCC 465: 1979 (2) SCR 633; Vinod K Chawla vs. Union of India & Ors. (2006) 7 SCC 337: 2006 (4) Suppl. SCR 651; Union B of India vs. Parasmal Rampuria (1998) 8 SCC 402;

Dropti Devi and Anr. vs. Union of India & Ors. (2012) 7 SCC 499: 2012 (6 ) SCR 307 - relied on.

Additional Secretary to the Govt. of India And Ors. vs. c Alka Subhash Gadia And Anr. 1992 Supp (1) SCC 496: 1990 (3) Suppl. SCR 583 - referred to.

2. 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 satisfaction of the State to arrive at a conclusion that a H

p. 604

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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 grour;ids. [Paras 8 and 9] [659.F-G; 660-B]

3. One of the grounds on which an order of preventive detention can be declared invalid is that there is no live nexus between (1) the material which formed the basis for the State to record its subjective satisfaction, and (2) the opinion of the State that it is necessary to . preventively detain a person from acting in any manner prejudicial to the public interest or security of the State etc. In other words, the material relied upon by the State for preventively detaining a person is so stale that the D State could not have rationally come to a conclusion that it is necessary to detain a person without a charge or trial. [Para 1OJ [660-C-D]

4. There could be two reasons which may lead to a E 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. [Para 14] [661-D]

5. 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, specific provisions are made in this regard under various . enactments dealing with the preventive detention. For example, Section 7 of the COFEPOSA Act recognises such a possibility. It can be seen from the said section

SUBHASH POPATLAL DAVE v. UNION OF INDIA 605

that in a case where proposed detenu is absconding or concealing himself, the Government may report the matter to the Magistrate having jurisdiction over the place where the proposed detenu ordinarily resides. On making of such report by the Government, the provisions of Sections 82, 83, 84 and 85 of the Code of Criminal B Procedure apply to the proposed detenu and his property, as if the order of preventive detention is a warrant issued by the Magistrate under the provisions of the Code of Criminal Procedure. In substance, the property of the propose(! detenu could be attached and perhaps even be confiscated in an appropriate case. [Paras 15, 16 and 17] [661-E-F; 662-F-H; 663-A]

6. 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, 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) indiyidual 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. Failure to appear without a reasonable excuse would be an offence and render the defaulter liable for a F punishment of imprisonment. Holding that the preventive detention orders are themselves rendered illegal, on the basis of the live nexus theory (which, is valid only. for examioing the legality of the order, viz-a-viz the date on which the order is passed) would not only exonerate the G person from the preventive detention order but also result in granting impunity to such person from the subsequent offence committed by him under the provisions such as Section 7(b) of the COFEPOSA Act. [Para 19] [663-G] H

p. 606

7Copy pinpoint7. Those who have evaded the process 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 B 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. c .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. [Paras 23 and 24] [664-H; 665-A-C] D · 8. The question whether the five circumstances specified .in Atka Subhas(l Gadia case are exhaustive of the grounds on which a pre-execution scrutiny of the legality of preventive detention order can be undertaken was considered earlier in the instant case. It was held that E the grounds are not exhaustive. But it cannot be held that such a scrutiny oughf to be undertaken with reference to the cases of those who evaded the process of law. [Para 27] [665-G-H; 666-A]

F Bhawarlal Ganeshmay·; Vs. State of Tamil Nadu & Anr. (1979) 1 SCC 463; M. Ahamedkutty Vs. Union of India & Anr. (1990) 2 SCC 1; Union of India & Ors. Vs. Arvind Shergif/ & Anr. (2000) 7 SCC 601 and Shafiq Ahmad Vs. District Magistrate, Meerut (1989) 4 SCC 556: 1989 (1) Suppl. SCR G 56 - relied on. American Communications Association C.I. 0. vs. Charles T. Douds [339 US 385) [94 Led 925 at 968] - referred to.

H Per Altamas Kabir, CJI. (dissenting)

SUBHASH POPATLAL DAVE v. UNION OF INDIA 607

1. The five exceptions culled out in Atka Subhash A Gadia's case were not intended to be exclusive. It was not the intention of the Hon'ble Judges in Atka Subhash Gadia's case to confine the challenge at the pre-execution stage only to the five exceptions mentioned therein, as that would amount to stifling and imposing restrictions B on the powers of judicial review vested in the High Courts and the Supreme Court under Articles 226 and 32 of the Constitution. The exercise of powers vested in the superior Courts in judicially reviewing executive decisions and orders cannot be subjected to any c restrictions, as such powers are untrammelled and vested in the superior Courts to protect all citizens and non-citizens, against arbitrary action. The law is never . static, but dynamic and the right to freedom being one of the most precious rights of a citizen, the same could 0 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. (Para 39] (635-F-H; 636- A-C] E-

2. 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 F to be established that the intention with which the preventive detention order had been passed continued to subsist so that the same could be executed even at a later date. In none of the instant cases, have the · Sponsoring Authorities or the Detaining Authorities G been able to establish that after the passing of the detention order the proposed detenues had continued with their activities, as enumerated in the detention orders, which would support the proposition that the object of the detention orders continued to be valid, even H

p. 608

A after the lapse of several years. Having regard to the above, where the detention orders in the instant group of cases have not been executed for more than two years and there is no material on record to indicate that the proposed detenue had, in the meantime, continued his anti-social activities, it has to be held that the detention orders in respect of such proposed detenues were no longer relevant and must be quashed. [Para 40) [636-E-H; 637-A]

3. Once 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. [Paras 41, . D 42) [637-G-H; 638-A]

4. It is seen from the provisions of Section 7 of the COFEPOSA Act that if the appropriate Government has reason to believe that a person in respect of whom E a detention order has been made, is absconding, or is concealing himself so that the order cannot be executed, the Government may take recourse to the provisions of Sections 82, 83, 84 and 85 CrPC and his property, as if the order directing him that he be detained were a warrant issued by the Magistrate. Section 7(1)(b) also provides for penal consequences, in the event directions given thereunder, are not complied with by the proposed detenue. Accordingly, Section 7 empowers the Government 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. The provisions H

SUBHASH POPATLAL DAVE v. UNION OF INDIA 609

of Sections 6 and 7 of the National Security Act, 1980, are A identical to the provisions of Sections 6 and 7 of the COFEPOSA Act, 1974. The said provisions clearly enumerate the powers vested in the Authorities when a proposed detenue absconds. That is the ordinary law of the land, and not preventive detention, which is meant to s prevent the commission of offences, and not to punish an individual for violation of statutory provisions. [Paras 45, 46, 47 and 48] [639-E-H; 640-A-C]

5. There is difference between preventive detention and the ordinary criminal law providing for detention C and arrest. While the Constitution, which is the cornucopia of all laws, accepts the necessity of providing for preventive detention, it also provides certain safeguards against arbitrariness and making use of the provision as a tool against political opponents. Since D the said provision deprives a citizen of some of the basic and fundamental rights guaranteed to him under the Constitution, the Courts have dealt with laws relating to preventive detention with great care and caution to ensure that the provision was not misused by the E Investigating Authorities as an easy alternative to proper investigation. Normally, the life of a preventive detention order is one year. Such a period is intended to give the detenue, who is detained without any trial, an opportunity to introspect and reflect into his past deeds, F and to dissuade him from indulging in the same in future. In other words, the period of detention is intended not to punish the detenue, but to make him realize the impact of his earlier indiscretions on society and to discontinue the same. [Para 49] [640-F-H; 641-A-B] G

6. Both the Revenue, as also the police authorities, appear to. be myopic in regard to the dividing line between preventive detention and arrest for a crime actually committed. On account of the above, the State and its authorities have attempted to justify the H

p. 610

A continuance of the validity of detention orders even after the lapse of several years after the passing .:if. the . detention order, citing principles such as a person cannot take advantage of his own wrong, in support thereof. However, a person evading service of an order B of preventive detention cannot be treated with the same yard-stick as a person, accused of having committed a criminal offence and evading arrest to thwart the criminal process initiated against him. The two principles stand on different footings. In the first place, the proposed c detenue is detained without being made an accused in connection with any particular case, but to prevent him from committing an .offence, whereas in 1 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 proposed detenue had indulged in any such activity after the order of preventive detention was passed, it would be illogical to pursue the execution of the detention order as the arrest and detention of the proposed detenue would become irrelevant and would not achieve the object for which it had been passed. [Para 50] [641-C-H; 642-A-C]

SUBHASH POPATLAL DAVE v. UNION OF INDIA 611

7. The concept of a person being prevented from taking advantage of his own wrong cannot be applied in the case of a detention order where the object of passing such an order is quite different from proceeding against a person charged with having committed a criminal offence. The continued validity of B a detention order would depend on whether the proposed detenue was in the record books of the authorities as a person habitually indulging in activities which were against the national interest and society in general and that it was, therefore, necessary . c in the public interest to detain him for a period of one year to prevent him from continuing with such activities and not to punish him as such. [Para 51] [642- D-F]

8Copy pinpoint8. Not only is a proposed detenue entitled to challenge the detention order at the pre-execution stage, but he is also entitled to do so after several years had elapsed after the passing of the detention order on 'grounds other than the five grounds enumerated in Alka Subhash Gadia's case. The orders of detention must not, as a matter of course, be read as an alternative to the ordinary laws of the land to avoid the rigours of investigation in order to make out a case for prosecution against the proposed detenue. Also 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. G 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. [Para 52] [643-A-E] H

p. 612

9Copy pinpoint9. The orders of detention challenged in the case at hand 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 B 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. [Para C 53) [643-F-G). Sayed Taher Bawamiya vs. Govt. of India (200Q) 8 sec 630 - not affirmed.

M. Ahamedkutty vs. Union of India (1990) 2 SCC 1: 1990 D (1) SCR 209; Dropti Devi vs. Union of India (2012) 7 SCC 499: 2012 (6) SCR 307 and Union of India vs. Amrit Lal Manchanda (2004) 3 SCC 75: 2004 (2) SCR 422 - distinguished.

Addi. Secretary, Govt. of India vs. Atka Subhash Gadia E (1992) Supp. (1) S'tc 496: 1990 (3) Suppl. SCR 583; Union of India vs. Atam Prakash & Anr. (2009) 1 SCC 585: 2008 (16) SCR 607; Rekha vs. State of Tamil Nadu (2011) 5 SCC 244: 2011 (4) SCR 740; Maqsood Yusuf Merchant vs. Union of India (2008) 16 SCC 31; Yusuf Razak Dhanani F vs. Union of India W.P.(Crl.) No. 132 of 2007; Sanjeev Jain vs. Union of India Crl. Appeal No. 1060 of 2010; Asha Devi vs. 7; K. Shivraj (1979) 1 SCC ~22: 1979 (2) SCR 215; State of U.P. vs. Kamal Kishore Saini (1988) 1 SCC 287: 1988 (1) SCR 859; Ayya alias Ayub vs. State of U.P. (1989) G 1 SCC 374: 1988 (3) Suppl. SCR 967; Union of India vs. Maj. Gen. Madan Lal Yadav (1996) 4 SCC 127: 1996 (3) SCR 785; Saeed Zakir Hussain Malik vs. State of Maharashtra (2012) 8 SCC 233: 2012 (7) SCR 235; Bhawarlal Ganeshmalji vs. State of Tamil Nadu (1979) 1 SCC H 465: 1979 (2) SCR 633; Union of India vs. Arvind Shergill

SUBHASH POPATLAL DAVE v. UNION OF INDIA 613

(2000) 7 SCC 601; Vinod K. Chawla vs. Union of India A (2006) 7 SCC 337: 2006 (4) Suppl. SCR 651; Hare Ram Pandey vs. State of Bihar (2004) 3 SCC 289: 2003 (6) Suppl. SCR 627; Naresh Kumar Goyal vs. Union of India (2005) 8 SCC 276: 2005 (4) Suppl. SCR 17; Subhash Muljimal Gandhi vs. L. Himingliana (1994) 6 SCC 14: B 1994 (2) Suppl. SCR 785; State of Maharashtra vs. Bhavrao Gawanda (2008) 3 SCC 613: 2008 (3) SCR 967 - referred to. Case Law Reference: d In the judgment of Gyan Sudha Misra, J.: 1990 (3) Suppl. SCR 583 referred to Para 2 2000 (1) SCR 945 relied on Para 2 D (2000) 8 sec 630 relied on Para 7 2003 (6) Suppl. SCR 627 relied on Para 7 2004 (2) SCR 422 relied on Para 8 2004 (1) Suppl. SCR 949 relied on Para 8 E 2008 (16) SCR 607 relied on Para 8 1979 (2) SCR 633 relied on Para 9 2006 (4) Suppl. SCR 651 relied on Para 10 F (1998) 8 sec 402 relied on Para 11 2003 (6) Suppl. SCR 627 relied on Para 12 2012 (6) SCR 307 relied on Para 13 G In the judgment of Chelameswar, J. (339 us 385) referred to Para 1 (1979) 1 sec 463 relied on Para 20 (1999) 2 sec 1 relied on Para 21 H '

p. 614

A (2000) 1 sec 601 relied on Para 22 1989 (1) Suppl. SCR 56 relied on Para 24 In the judgment of Altamas Kabir, CJI: 1990 (3) Suppl. SCR 583 referred to Para 2 B . ,(2000) 8 sec 630 not affirmed Para 2 2008 (16) SCR 607 referred to Para 2, 21 2011 (4) SCR 740 . referrec! to Para 7 c ~2008) 16 sec 31 referred to Para 10, 13 1979 (2) SCR 215 . referred to Para 20 1988 (1) SCR 859 referred to Para 20 D 1988 (3) Suppl. SCR 967 referred to Para 20 1996 (3) SCR 785 referred to Para 22 2012 (6) SCR 307 distinguished Para 22, 48, 51 E 2012 (7) SCR 235 referred to Para 23 1979 (2) SCR 633 referred to Para 23 2004 (2) SCR 422 distinguished Para 24 F 1990 (1) SCR 209 distinguished Para 24

. (2000) 1 sec· so1 . referred to Para 24 2009 (4) Suppl. SCR 651 referred to Para 24

G 2003 (6) Suppl. SCR 627 referred to Para 24, 34 2005 (4) Suppl. SCR 17 referred to Para 24

1994 (2) Suppl. SCR 785 referred to Para 24

2008 (3) SCR 967 referred to Para 34 H

SUBHASH POPATLAL DAVE v. UNION OF INDIA 615

CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.) A No (s) .137 of 2011. Under Article 32 of The Consitution of India. WITH B W.P. (Crl.) Nos. 138 & 35 of 2011, Crl. A. Nos. 932 & 931 of 2013, W.P. (Crl.) Nos. 220, 249 of 2011, 14 of 2012,' Crl. A. No. 930, 961-962 of 2013 & T. C. (Crl.) Nos. 2-3 of c 2013 P. P. Malhotra, ASG, Mukul Rohatgi, B. H. Marlapalle, Pramod K. Singh, Ravindra Keshavrao Adsure, Saurabh Kirpal, Dr. G. K. Sarkar, Sanja.Y Agarwal, Karan Bharioke, Malabika Sarkar, Prashant Srivastav, D. Mahesh Babu, Sujay N. D . Kantawala, Rakesh Dahiya, Nikhil Jain, Ranjana Narayan, . Chetan Chawla, Asha G. Nair, B. Krishna Prasad, Arvind4,. · . Kumar Sharma, Anita Bafna, Gopal Balwant Sathe, Dr. Kailash ., . Chand for the Appearing Parties. The three Judg_ments of the Court were delivered by E ,, .

ALTAMAS KABIR, CJi. 1. L-eave 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 F detention orders passed either against the Petitioners themselves or the persons represented by them. The common question of law involved in these Appeals, Writ Petitions and Transfer Petitions is whether a detention qrder passed under the provisions of the Conservation of Foreign Exchange and G Prevention of Smuggling Activities Act, 1974, hereinafter. referred to as "the COFEPOSA Act, 1974", could be challenged at the pre-execution stage only on any of the five/exceptions carved out by this Court in Addi. Secretary, Govt. of India vs. Alka Subhash Gadia [(1992) Supp. (1) SCC 496], or whether H

p. 616

A such challenge could be maintained on other grounds as well. The matter had come up for hearing on the said question on several days when we had occasion to consider the decisions referred to by the learned Additional Solicitor General, Mr. P.P. Malhotra in Sayed Taher Bawamiya Vs. Joint Secretary, B Government of India [(2000) 8 SCC 630) and in the case of Union of India Vs. Atam Prakash & Anr. [2009) 1 SCC 585), wherein it had been held that the grounds of challenge to a detention order at the pre-execution stage could only be confined to the five exceptions set out in Alka Subhash Gadia's c case (supra). After having considered all the said decisions and the submissions made on behalf of the respective parties and keeping in mind the fact that the most precious right of a citizen is his right to freedom, we were convinced that the right of a detenue to challenge a prevention detention order passed against him at the pre-execution stage on grounds other than D those set out in paragraph 30 of the judgment in Alka Subhash Gadia's case (supra) required further examination. We had accordingly directed these matters to be listed for final hearing on all the grounds of challenge directed against the detention orders. E

3. Appearing for the Appellants and the Writ Petitioners, Mr. Mukul Rohatgi, learned Senior Advocate, submitted that the question as to whether the five exceptions mentioned in Alka Subhash Gadia's case (supra) were only illustrative and not exhaustive had already been considered in the common judgment dated 10th July, 2012, wherein it was also held that the law is not static, but dynamic. Mr. Rohatgi reiterated his earlier submission that if a citizen's right to freedom is to be interfered with in the public interest, such powers would have to be exercised with extra caution and not simply as an alternative to the ordinary laws of the land.

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 H Subhash Gadia's case, it would result in restrictions being

SUBHASH POPATLAL DAVE v. UNION OF INDIA 617 [ALTAMAS KABI~, CJI.] imposed on the powers vested in the Supreme Court under A 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 B 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 c passed against him, at the preexecution 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 D sought to be achieved by passing the detention orders, were no longer relevant and had become otiose, having regard to the fact that the object of a detention order is not to punish a citizen for a crime with which he had not been charged, but to prevent him from committing such crime in the future. Mr. E Rohatgi submitted that in these cases the said principles have been violated and had been used by the concerned authorities as a convenient alternative to the ordinary laws of the land.

6. In this background, the matter which was taken up first F and treated as the lead matter, is Writ Petition (Crl.) No. 137 of 2011, filed by Subhash Popatlal Dave, questioning the detention order issued by the Joint Secretary, Government of India, on 18.08.1997, under Section 3(1) of the COFEPOSA Act, 1974. G

7. Mr. Rohatgi submitted that this was a classic example of the sheer misuse of the powers vested in the authorities to issue orders of detention as an alternative to the ordinary laws of the land. Mr. Rohatgi submitted that, unless and until, it could H

p. 618

A be shown that after the detention order was passed the detenue had indulged in activities which were similar to those on account whereof the detention order had been passel:!. the very reason for the detention order stood eroded. The detention order, which was to be valid for a period of one year, outlived B its purpose after the said period, since there is nothing on record to show that the proposed detenue had indulged in any activities of a similar nature after the detention order was passed. Mr. Rohatgi urged that there was no existing live link between the detention order and the intention of the authorities c to detain the detenue by virtue of such detention order. Apart from the above, Mr. Rohatgi submitted that a prosecution has also been commenced against the proposed detenue before the Court of Additional Chief Metropolitan Magistrate, Esplanade, Mumbai, for offences alleged to have been committed under Sections 8(1), (2), (4), 9(1)(b), 9(1)(d), 14, 0 27(1), 49(3),(4), 56(1) of the Foreign Exchange Regulation Act, 1973, and the matter is now pending before the FERA Appellate Tribunal, New Delhi. Mr. Rohatgi submitted that, as has been held in the recent judgment of this Court in Rekha Vs .. State of Tamil Nadu [(2011) 5 SCC 244], when adequate E measures and remedies under the ordinary criminal law had already been taken, there could be 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 F.673/89/97cCUS.Vlll 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.

G 8. The next case is that of Nitish Prakashchand Kottiari [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

. ~" ;

SUBHASH POPATLAL DAVEy. UNION OF INDIA 619 [ALTAMAS KABIR, CJI.] today. Mr. Rohatgi subn:iitted that in the present' case more than three and a half years have passed since the impu'gned detention order was passed and there is nothing on rec9rd to ·indicate that the proposed detenue had or was likely to indulge . in activities described in the detention order. Accordingly, the order of deten!iqn passed in respect of the Petitioner is required to be quashed.

9. In Suresh D. Hotwani's case [W.P.(Crl.) No. 35 of 2011], the proposed detenue is one Nitesh Ashok Sadarangani, and the detention order was passed on 12.3.2001. The said detention order was challenged by the Writ Petitioner before the Bombay High Court, being Criminal Writ Petition No. 1645 of 2010, which dismissed the same on 5.1.2011. S.L.P. (Crl.) No. 2442 of 2012 was filed on 29.2.2012 against the said order of dismissal of the Writ Petition filed before the Bombay High Court. However, in the meantime, the Petitioner also moved the presen!Writ Petition [W.P.(Crl.) No. 35 of 2011] challenging the same order of detention. Mr. Rohatgi submitted that, in fact, the challenge in the Special Leave Petition filed before this Court is against the judgment and order of the Bombay High Court dismissing the challenge to the detention order. On the. other hand, Writ Petition [W.P.(Crl.) No. 35 of 2011] challenges the same detention order directly in this Court. Mr. Rohatgi submitted that the cause of action for the two proceedings are different, although, they may both arise out of the order of detention passed against the proposed detenue, Nit~sh Ashok F Sadarangani. 1

10Copy pinpoint10. Mr. Rohatgi urged that the grounds for challenge of the detention order are the same as those in Subhash Popatlal Dave's case [W.P.(Crl.) No. 137 of 2011] to the extent that after an interval of more than 11 years the deten.tion order had G become stale since there is no material to indicate that the proposed detenue had indulged in any activity during thi& period which may have given some justification to the continuance of the concerned detention order. Mr. Rohatgi submitted that the long interval between the passing of the '

p. 620

A detention order and the execution of the order has diluted the detention order and defeated the very purpose for which it was passed. Mr. Rohatgi also drew an analogy with the case of one Shri Nikunj Kirti Kanaria, whose detention order was revoked at the pre-execution stage, since the same had become stale B _Qwing Jo_pa_ssage of time. Mr. Rohatgi submitted that in the present case the live link stood snapped as there was no explanation for the long delay between the date of the detention order and the failure to execute the same. Referring to the decision of this Court in Maqsood Yusuf Merchant Vs. Union c of Jndia[(2008) 16 sec 31], learned counsel submitted that this Court had set aside the detention order under 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 0 serving the detention order, the same had lost its very purpose and was, therefore, liable to be quashed.

11Copy pinpoint11. S.L.P. (Crl.) No. 1909 of 2011 has been filed by Anil Kailash Jain against the judgment and order dated 5.1.2011 E 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 F 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. G In fact, the same arguments, as were advanced in Suresh D. Hotwani's case, were advanced regarding the absence of a live link between the impugned detention order and the attempt to detain the Petitioner on the basis thereof after an interval of six years. It was submitted that the detention order was not sustainable, since the very object of the detention order had H

SUBHASH POPATLAL DAVE v. UNION OF INDIA 621 [ALTAMAS KABIR, CJI.] become stale and, therefore, redundant in the absence of any material on record to suggest that the Petitioner had, since the passing of the detention order, indulged in any activity, similar to the one mentioned in the detention order, during the intervening years.

12Copy pinpoint12. S.L.P.(Crl.) No. 1938 of 2011 was filed against the judgment and order dated 31.1.2011, passed by the Bombay High Court in Criminal Writ Petition No. 3233 of 2010, challenging the validity of the detention order No. PSA-1206/ 2/Spl-3(A) dated 21.8.2006, passed under Section 3(1) of COFEPOSA Act, 1974. The grounds of challenge in the Writ C Petition are the same as those urged in the earlier matters, to which reference has also. been made by the learned Judges of the Bombay High Court. One of the questions of law, which had been raised, is whether under the Right to Information Act, 2005, the Petitioner was entitled to copies of the detention order D before its execution, which question was negated in the judgment and order dated 10.7.2012.

13Copy pinpoint13. S.L.P.(Crl.) Nos.2091-92 of 2012 is directed against the judgment and order dated 24.2.2012, passed by the Delhi High Court in Writ Petition (Crl.) No. 1629 of 2011 and Criminal E Misc. Application No. 18497 of 2011 filed in the said Writ Petition. In the Writ Petition before the High Court, the Petitioners challenged a detention order dated 7.10.2004, passed under Section 3(1) of COFEPOSA Act, 1974. The High Court, while considering the said Writ Petition and F Criminal Miscellaneous Application, took note of the fact that the Petitioners had challenged the detention order in a previous Writ Petition, being W.P. (Crl.) No. 566 of 2005, which was dismissed by a Division Bench of the Delhi High Court on 2.1.2007. It was also noticed that after the dismissal of the Writ Petition, the judgment of the Division Bench was challenged in G S.L.P.(Crl.) No. 3132 of 2007, which was also dismissed on 10.7.2007. It was- also noticed that the second Petitioner, namely, the proposed detenue, Rajeev Verma, was residing in the United States and was represented by his learned Advocate, Mr. Nikhil Jain. On behalf of the Shri Rajeev Verma, H

p. 622

A 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, namel'.)(, that seven ye;us had passed since the detention order had been issued for a limited period of one year. The order was also challenged on the ground B 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 c 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 1orders were quashed on account of absence of any 0 live link between the detention order and the attempt now being made to detain the proposed detenues cm the basis of the same order, without any fresh material to indicate that after the passing of the detention order the proposed detenues had E indulged in acts, which were similar to those indicated in the detention order.

14Copy pinpoint14. Transfer Petition (Crl.) Nos. 38-39 of 2013 have been filed by one Vijay Ram Silas Gupta, against whom a detention order, being No. PSA- 12111CR-21 (1 )ISPL-3(A), was passed on 23.1.2012. Prior to the passing of the detention order, the F Petitioner had filed an application for settlement of the case arising out of the Show Cause notice dated 13.12.2011, which was allowed by the Settlement Commission, Customs and Central Excise, Additional Bench, Mumbai on 29.3.2012, and the case was settled. While settling the case, the Settlement G Commission granted the Petitioner immunity from prosecution under the Customs Act, 1962. The Writ Petition filed by the Petitioner challenging the detention order, being W.P.(Crl.) No. 48 of 2012, was disposed of by this Court on 4.4.2012, with leave to the Petitioner to approach the High Court for H appropriate relief, if any.

SUBHASH POPATLAL DAVE v. UNION OF INDIA 623 [ALTAMAS KABIR, CJI.]

15Copy pinpoint15. Pursuant to the leave granted by this Court, on A 14.4.2012, the Petitioner filed Criminal Writ Petition No. 1502 of 2012, before the Bombay High Court, praying for quashing and setting aside the impugned order of detention dated 23.1.2012, in view of the settlement of the case on payment of the admitted duty liability. In view of the settlement of the case, B the Bombay High Court passed an ad interim order directing the Respondents authorities not to take coercive action against the Petitioner, till the next date. On 1~.6.2012, the Union of India filed Writ Petition {Lodg) No. 1523 of 2012, before the Bombay High Court, challenging the final order dated 29.3.2012, passed · C by the Settlement Commission. The same is still pending. During the pendency of the matter, this Court, by its interim judgment dated 10.7.2012, held that the detention orders could be challenged at the pre-execution stage even on grounds other than the five exceptions indicated in Alka Subhash Gadia's case (supra). Accordingly, the Petitioner prayed for transfer of D the two pending Writ Petitions, before the Bombay High Court, one filed by the Petitioner and the other by the Union of India, to be heard along with the other matters, since the same questions of law were involved . E.

16Copy pinpoint16. The main challenge in the Writ Petition by the Petitioner before the Bombay High Court was that instead of passing a detention order for preventive 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 F 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 G ground of challenge is that when the Settlement Commission ;,;{,der the Customs Act, 1962, had granted conditional immunity under SuO:sectign (1 )_of Section 127H of the Customs Act, there could be no further ground for either i~suing or continuing with the detention order, which arises out of the facts inrespect--H

p. 624

A of which the Settlement Commission had granted immunity to the Petitioner.

17Copy pinpoint17. Writ Petition (Crl.) No. 14 of 2012, filed by Mohan Lal Arora, is for quashing Detention Order No. 673/18/2011- CUS.Vlll dated 8.9.2011, on the same grounds, as urged in 8 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 stamp of the Sponsoring Authority, without applying its mind independently. It was further urged that, as in other matters, the Sponsoring Authority took C recourse to an order of preventive detention, without taking recourse to the ordinary laws of the land available for prosecution of offences referred to in the detention order.

18Copy pinpoint18. Writ Petition (Crl.) No. 249 of 2011 filed by Manju R. D Agarwal was in respect of her husband, Rajesh Kumar Agarwal, against whom detention order No. PSA-1210/CR-60/ SPL-3(A) had been passed on 23.12.2010, in terms of Section 3(1) of COFEPOSA Act, 1974. The facts of this case are no different from the facts in Transfer Petition (Crl.) Nos. 38-39 of

E 2013. As in the said Transfer Petitions, in the instant case, on the same set of accusations, the detenue was arrested on 2.3.2010 and was, thereafter, released on bail by the Sessions Court on 5.4.2010. Thereafter, the proposed detenue, along with others, approached the Settlement Commission for F settlement of the disputes in respect of the show cause notices issued to them in the manner contemplated under Sections 127-A to 127-M of the Customs Act, 1962. By an order dated 17 .10.2011, the Settlement Commission allowed the applications to be proceeded with and while imposing penalty upon the proposed detenue under Sections 112-A and 114-F G of the Customs Act, 1962, granted full immunity to Shri Rajesh Kumar Agarwal from payment of penalty as well as complete immunity from prosecution under the Customs Act.

19Copy pinpoint19. It was urged that the detention order has lost its H significance and relevance in view of the immunity from

SUBHASH POPATLAL DAVE v. UNION OF INDIA 625 [ALTAMAS KABIR, CJI.] prosecution granted by the Settlement Commission under Sub- A section (1) of Section 127-H of the said Act.

20Copy pinpoint20. The last of this batch of matters, which wa$ heard together, is Writ Petition (Crl.) No. 220 of 2011, filed by one Kamlesh N. Shah, the.father of the proposed detenue, Bhavik B Kamlesh Shah, against whom Detention Order No. PSA-1211/ CR-18/SPL-3(A) was passed on 16.9.2011, under Section 3(1) of COFEPOSA Act, 1974. The grounds of challenge to the detention order are a little different from those which had been taken in the earlier matters. In the present case, apart from the C . grounds of delay, it has been indicated that on 7.12.2010, the proposed detenue had been taken into custody and was shown to be formally arrested on 9.12.2010, by the Director of Revenue Intelligence, 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 D 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 E 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 sec 374], and several other cases, where this Court F 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, G which not only prejudiced the detenue, but also resulted in the illegal order of preventive detention being passed against him.

21Copy pinpoint21. Responding to Mr. Mukul Rohatgi's submissions as also the submissions made by the other learned counsel, the H '

626 SUPREME COURT REPORTS [2013] 17 .S.C.R.

A learned Additional Solicitor General, Mr. P .P. Malhotra, submitted that although the matter as far as challenge to detention orders at the pre-detention stage on grounds other than those categorized in Alka Subhash Gadia's case, had • been considered earlier on 10th July, 2012, the Court was of B the view that the matter required further consideration. In that context, the learned Additional Solicitor General repeated his earlier submissions, with particular reference to the decision of this Court in Sayed Taher Bawamiya's case (supra) and Atam Prakash's case (supra), wherein it had been held that a c detention order could be challenged at the pre-execution stage but only with regard to the five exceptions carved out in Alka Subhash Gadia's case (supra).

22Copy pinpoint22. In addition, Mr. Malhotra submitted that the delay in execution of the order of detention was mostly on account of D the fact that the proposed detenue had absconded either just before or after the passing of the detention order, thereby making execution difficult, or at times impossible, but, as was held in the case of Union of India Vs. Maj. Gen. Madan Lal Yadav [(1996) 4 SCC 127], a detention order which had been' E validly passed by the concerned authority cannot be rendered invalid in view of the fact that the proposed detenue had absconded and was evading arrest. It was indicated that the proposed detenue should urider no circumstan1:es be allowed to take the benefit of his own wrong. Mr. Malhotra submitted that the same principle had alst!I been followed by this Court in Dropti Devi Vs. Union of India [(2012) 7 SCC 499], where it ·was found that the order of detention had been passed as far back as on 23rd September, 2009, and though the order was preventive in nature and the maximum period of detention was one year, the detention order could not be executed because ''the second petitioner had evaded arrest wilfully and, he could not, therefore, take advantage of his own conduct.

23Copy pinpoint23. On the ground of the detention order having become stale, Mr. Malhotra urged that as was pointed out by this Court H

·'

SUBHASH POPATLAL DAVE v. UNION OF INDIA 627 [ALTAMAS KABIR, CJI.] in Saeed Zakir Hussain Malik Vs. State of Maharashtra A ((2012) 8 sec 233). no hard and fast rule can be laid down on the question of delay and it will depend on the facts of each case. The learned ASG referred to the decision of this Court in Bhawarlal Ganeshmalji Vs. State of Tamil Nadu [(1979) 1 sec 465), wherein it had been urged that the detention order B 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 c 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 as'sumed that the live link is snapped, one may strike down an order of detention, but where the delay is found to be on ac9ount 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 th~ 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, and in that context this Court held that Mr. Jethmalani's submissions regarding the delay in execution of the detention order could not be accepted. Mr. Malhotra submitted that this Court had not only refused to quash the detention order, but had categorically observed that it would strengthen the link.

24Copy pinpoint24. Mr. Malhotra also referred to the decisions of this Gou.rt in Union of India Vs. Amrit Lal Manchanda ((2004) 3 SCC 75] as also in M.Ahamedkutty Vs. Union of India ((1990) 2 SCC. G 1], wherein it had also been objarved that where the passage of time is caused by the detenue himself by absconding, the. satisfaction of the Detaining Authority cannot be doubted and the detention order cannot be held to be bad on that ground. Mr. Malhotra urged that in Union of India Vs. Arvind Shergil/ H

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p. 628

A [(2000) 7 SCC 601), this Court looked into the continued validity of a detention order after a passage of 13 years. This Court came to the conclusion that since the proposed detenue was himself instrumental in causing the inordinate delay, he could not challenge the order of detention on the ground of B delay. Reference was also made to the decisions of this Court in Vinod K. Chawla Vs. Union of India ((2006) 7 SCC 337], Hare Ram Pandey Vs. State of Bihar ((2004) 3 SCC 289), Naresh Kumar Goyal Vs. Union of India ((2005) 8 SCC 276] and Subhash Muljimal Gandhi Vs. L,. Himingliana [(1994) 6 c sec 14], wherein in common it had been held that the delay in executing the order of detention could not be taken as a ground for quashing of the detention order, where such delay was occasioned by the detenue himself.

25Copy pinpoint25. Mr. Malhotra submitted that in all of the aforesaid judgments cited by him, even though there was a delay in execution of the detention order, yet, the same were not quashed on that account, as the proposed detenues were wilfully evading arrest and were absconding. Mr. Malhotra submitted that once an order of detention had been passed, the person against whom the detention order was directed cannot abscond and take benefit of his own wrong. It was further submitted that it was not possible for anyone, other than the proposed detenue, to know the acts which may have been committed by the proposed detenue after the passing of the detention order, and it was, therefore, not possible for the Government to keep a track of the same and a presumption ought to be drawn against the absconder 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.

26Copy pinpoint26. 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

SUBHASH POPATLAL DAVE v. UNION OF INDIA 629 [ALTAMAS KABIR, CJI.) continues to be in force unless the same is executed, withdrawn or cancelled. Once a valid warrant had been issued, it cciuld 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 B Transfer Petitions, were liable to be dismissed.

27Copy pinpoint27. Out of the 11 matters i'leard 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, C Mr. B.H. Marlapalle, learned Senior Advocate, who appeared on behalf of the State of Maharashtra in all the matters, submitted that in Nitish Prakashchand Kothari's case [W.P.(Crl) No. 138 of 2011), the detention order had been passed under Section 3(1) of the· COFEPOSA Act, 1974, but the same was not executed till the Petitioner himself approached this Court. It was submitted that action under Section 7(1 )(b) of the COFEPOSA Act was taken by the Detaining Authority on 27 .1.2010, and an arrest warrant was also issued against him. Mr. Marlapalle submitted that the Petitioner had relied on !he revocation of the detention order passed against co-accused, Shri Tarun Popatlal Kothari, against whom an order of detention was also passed simultaneously on 3.12.2009, on the basis of a common proposal. However, the said detention order was revoked on the views expressed by the Advisory Board. Mr. Marlapalle F urged that the proposed detenue was claiming parity with the O(der passed in Shri Tarun Popatlal Kothari's case and that he had not been absconding, which caused the detention order to become stale. Mr. Marlapale submitted that the Petitioner had also claimed that he had not indulged in any prejudicial G activity during the said intervening period. Furthermore, his case could not be placed before the Advisory Board and, there was no occasion, therefore, for the Board to record its opinion in this case. Despite the above, Mr. Marlapalle submitted that since the Petitioner did not choose to challenge the detention H

p. 630

A order for about two years, his Petition deserves to be 9ismissed.

28Copy pinpoint28. With regard to Suresh Kumar Ukchand Jain's case (S.L.P. (Crl.) No. 1938 of 2011 (now Appeal)], the detention B order was passed on 21.8.2006, under Section 3(1) of the COFEPOSA Act, and the said order could not also be executed. Mr. Marlapalle submitted that although the detention order had been passed in 2006, it came to be challenged for the first time before the Bombay High Court in Criminal Writ Petition No. 3233 of 2010, and was dismissed on 31.1.2011. C Mr. Marlapalle submitted that in this matter the main ground of challenge to the detention order was the ground of delay, which caused the order of detention to become stale. Responding to Mr.'Rohatgi's submissions, Mr. Marlapalle contended that the delay in execution of the detention order was partly on account D · of the authorities themselves, since in the affidavit filed by the Detaining Authority before the High Court, it was iridicated that the detention order had been passed 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 E 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 F' 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 G by taking recourse to Section 7 of the COFEPOSA Act, 1974, or why steps were not taken to declare the Appellant as an a~sconder from 9.7.2007, till he approached the High Court in Writ Petition No. 3233 of·2010.

29Copy pinpoint29. In the third case, which is S.L.P.(Crl.) No. 1909 of 2011 H

SUBHASH POPATLAL DAVE v. UNION OF INDIA 631 [ALTAMAS KABIR, CJI.] (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 been zubmitted for the preventive detention of 13 persons including the Appellant, and orders were passed accordingly. However, while the detention orders against the co-accused individually were executed, in the Appellant's case, the same could not be executed. Subsequently, orders were passed under Section 7(1)(b) of the COFEPOSA Act and a report under Section 7(1 )(a) of the said Act was submitted to the Judicial Magistrate, First Class, New Delhi. Mr. Marlapalle submitted that the c Appellant filed Criminal Writ Petition No. 2675 of 2010, at the pre-execution stage, and the same was dismissed by the Bombay High Court on 5.1.2011, on the basis of the decision in Alka Subhash Gadia's case.

30Copy pinpoint30. In W.P. (Crl.) No. 220 of 2011, filed by Kamlesh N. D Shah, the detention order had been passed under Section 3( 1) of the COFEPOSA Act, 1974, on 16.9.2011, in regard to Bhavik Shah, the proposed detenue. The proposed detenue, who is the son of the Petitioner, was alleged to be a havala operator, who had allegedly evaded customs duty to the tune of Rs. 3 crores. Mr. Marlapalle submitted that despite efforts to serve the detention order, the same could not be served as the proposed detenue remained untraceable. Summons to the detenue were also issued by the Sponsoring Authoritfand S(:lrved on the family members of the detenue. On his failure to respond to the summons, an order was passed under Section 7(1)(b) of the COFEPOSA Act, on 7.12.2011. Mr. Marlapalle also submitted that as far as the retractions made by the purported detenue are concerned, the same were made after he had been granted bail and copies thereof were placed before the Additional Chief Metropolitan Magistrate on 31.5.2011, without copies of the same being served on the prosecutor of the departmental representative. Mr. Marlapalle submitted that it is obvious that the Petitioner had knowledge of the detention order before be applied for bail and the H .i .

p. 632

'

A retractions were made thereafter. Mr. Marlapalle submitted lhat- the retractions, which were sent by post, were only for the purposes of challenging the detention order, when it was passed.

8

31Copy pinpoint31. W.P.(Crl.) No. 249 of 2011 has been .filed by Manju R. Agarwal, the wife of the proposed detenue, Shri Rajesh Agarwal, against whom the detention order was passed under Section 3(1) of the COFEPOSA Act, on 23.10.2010. The detention order could not be executed, till 12.12.2011, when the Writ Petition came to be filed before this Court Mr. Marlapalle C submitted that tliis 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 D Petitioner and the co-accused. It is on that basis that a representation was made on 11.11.2011 for revocation C1l 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 E 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.

32Copy pinpoint32. Writ Petition (Crl.) No. 35 of 2011 and S.L.P. (Crl.) No. F 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 G that the detention order had become stale since it could not be executed for 'nine years. Mr. Marlapalle urged that the Writ Petition was a duplication of the relief prayed for in the Special Leave Petition and was not, therefore, maintainable. Mr. Marlapalle submitted that the detention order had earlier been challenged by the Petitioner before the Bombay High Court in H

SUBHASH POPATLAL DAVE v. UNION OF INDIA 633 [ALTAMAS KABIR, CJJ.] Criminal Writ Pet~ion No. 1645 of 2010. The Writ Petition was finally dismissed on 5.1.2011, which order had been challenged in the Special Leave Petition, in the first instance, and it is, thereafter, that Writ Petition (Crl.) No. 35 of 2011 was filed on 2.2.2011 under Article 32 of the Constitution. Accordingly, the Writ Petition is not maintainable and is liable to be dismissed.

33Copy pinpoint33. Mr. Marlapalle submitted that, on behalf of the Detaining Authority, it had been stated on affidavit that the detention order could not be served on the proposed detenue, as he remained absconding despite the steps taken to_ declare him as an absconder under Sections 7(1 )(a) and 7(1)(b) of the COFEPOSA Act. Mr. Marlapalle submitted that the question of snapping of live link was not available to the Petitioners having regard to the fact that the same was not a ground which came within -the five exceptions in Alka Subhash Gadia's case. Mr. D Marlapalle repeated that the passage of time between the passing of the detention order and the challenge thrown thereto could not, by itSelf, be a reason to hold that the detention order had become stale. Whether the detention order had become stale or not was required to be examined in the circumstances E of each case and, in any event, the proposed detenue could n9t take advantage of his own wrong by evading the detention order arid then ch~llenging the same on the ground of delay.

34Copy pinpoint34. Mr. Marlapalle urged that in Hare Ram Pandey (supra), F .there was a delay of nine yea~. but it was held that such delay, . ·in itself, was insufficient to hold that the detention order had become stale. Learned counsel also referred to the other decisions in Alka Subhash Gadia. (supra), Subhash Muljimal qandhi (supra), Naresh Kumar Goyal (supra) and aJso State G of Maharashtra Vs. Bhavrao Gawanda ((2008) 3 SCC 613], in which the delay ranged between four years and seven years, but it was held by this Court that such a ground was inadequate as the proposed detenue, having absconded, could not, thereafter, asked for the protection of the law., H

634 SUPREME COURT REPORTS [2013] 17, S.C.R.

35Copy pinpoint35. 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. B - '

36Copy pinpoint36. In addition to the above, Mr. Marlapalle drew the Courts' attention to Section 5A of the National Security Act, 1980, hereinaft~r referred to as "NSAAct, 1980", which provides that the grounds of detention are severable .on certain defined C 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. D

37Copy pinpoint37. Mr. Marlapalle submitted that all the Writ Petitions, Appeals and Transfer Petitions were liable to be dismissed.

38Copy pinpoint38. The grounds taken on behalf of the several Petitioners/ E Appellants may be encapsulated in the following manner:

(i) That, the detention orders passed in respect of the several proposed detenues were challenged at the pre-detention stage, on grounds other than those indicated in Atka Subhash Gadia's case (supra), F and that the five exceptions carved out in Atka Subhash Gadia's case were illustrative and not exhaustive.

(ii) Whether any live link could be said to exist between G the order of detention and the object sought to be achieved by treating the detention order as valid after the passage of several years ranging from three to sixteen years, during which period there is no record of the proposed detenue having undertaken any activities similar to the ones H

SUBHASH POPATLAL DAVE v. UNION OF INDIA 6~5 [ALTAMAS KABIR, CJI.] ..' indicated in the detention ordei? In the absence of any live link, can the detention order survive?

(iii) Whether having absconded or evaded the execution of the detention order,..the proposed detenue could take advantage of such fac~ and challenge the detention order, which remains unexecuted?

(iv) Once the Settlement Commission under the Customs Act accepts a settlement and provides complete immunity from prosecution under Section c 127H of the Customs Act, could the detention order be passed or proceeded with?

(v) Whether, when the ordinary law of the land is available, orders of preventive detention can be D passed?

(vi) Whether the provisi.ons of Section 7 of the COFEPOSA Act, 1974, and Section 7 of the National Security Act, 1980, can be made the basis for m!tking an order of preventive detention? E

39Copy pinpoint39. As far as the first ground of challenge is. concerned, we have already indicated in our earlier order of 10th July, 2012, that the five exceptions culled out in Alka Subhash Gadia's case were not intended to be exclusive and that the .F decision in Sayed Taher Bawamiya's case could not be accepted. We had indicated that it was not the intention of the · Hon'ble Judges in Alka Subhash Gadia's case to confine the challenge at the pre-execution stage only to the five exceptions mentioned therein, as that would amount to stifling and G imposing restrictions on the powers of judicial review vested in the High Courts and the Supreme Court under Articles 226 and 32 of the Constitution. After considering other decisions delivered on the aforesaid proposition, after the decision in Alka Subhash Gadia's case, we had also held that the exercise H

636 SUPREME COURT REPORTS (20131 J7 S.C.R.

.A of powers vested in the superior Courts in judicially reviewing executive decisions and orders cannot be subjected to any restrictions, as such powers are untrammelled and vested in the superior Courts to protect all citizens and non-citizens, against arbitrary action. As submitted by Mr. Rohatgi at the very B beginning of his submissions.. we had indlcated· 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 c extra caution and not as an alternative to the ordinary laws of the land.

40Copy pinpoint40. 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 the intention with which the preventive detention -0rder had been passed continued to subsist so that the same - F could be executed even at a later date. In none of the instant cases, have the Sponsoring Authorities or .the Detaining Authorities been able to establish that after the passing of the detention order the proposed detenues had continued with their activities, as enumerated in the detention orders, which would support the proposition that the object of the detention orders continued to be valid, even after the lapse of several years. Having regard ·to the above, where the detention orders in the instant group of cases have not been executed for more than two years and there is no material on record to indicate that the proposed detenue had, in the meantime, continued his anti-

SUBHASH POPATLAL DAVE v. UNION OF INDIA 637 [ALTAMAS KABIR, CJI.] social activities, it h_as to be held that the detention orders in respect of such proposed detenues were no longer relevant and must be quashed.

41Copy pinpoint41. As far as the fourth _ground is co_ncerned, one has tO bear in the mind that the provision of the Customs Act and other 8 Revenue laws are mainly aimed at recovery of dues and penalties, payment whereof had been avoided and it is such manner of thinking which resulted in the amendment of the Customs Act, 1962, by the inclusion of Chapter XIVA, by Act 21 of 1998. Chapter XIVA relates to settlement of cases and contains Sections 127A to 127N. Section 1278 empowers any C importer, exporter or any other person to make an application in respect of a case pertaining to him, to the Settlement Commission, to have the case settled. The Settlement Commission has been given powers to reopen completed proceedings and, thereafter, allow the said applications under D Section 127F. In addition, the Settlement Commission has been empowered under Section 127H to grant immunity from prosecution and penalty. Section 127M lays down that any proceeding under Chapter XIVA before the Settlement Commission would be deemed to be a judicial proceeding, within the meaning of Sections 193 and 228 of tbe Customs Act, 1962 and also for the purposes· of Section 196 of the Indian - Penal Code.

42Copy pinpoint42. Clearly, the object with which the said provisions had been introduced in the Customs Act, was not to continue with criminal prosecution or to take other steps, if a settlement proposed by an alleged offender was accepted by the Settlement Commission, which granted immunity from prosecution under the Act to the said applicant, after considering the matter from its various angleir, _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

H

p. 638

A of the COFEPOSA Act, 1974, or any other ancillary provisions, is involved in fresh transgression of the law.

43Copy pinpoint43. At this stage, I may take notice of the provisions of Sections 6 and 7 of the COFEPOSA Act, 1974. Section 6 of B 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 -

c (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." D

44Copy pinpoint44. 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 E with the powers of the Government in relation to absconding persons. Since the same is of considerable relevance to the facts of this case, being one of the main grounds on which the orders of detention have been challenged, the same is also reproduced hereinbelow: F "7. Powers in relation to absconding persons - (1) If the appropriate Government has reason to believe that a person in respect of whom a detention order has been ' has absconded or is concealing himself so that the made order cannot be executed, the Government may- G (a) make a report in writing of the fact to a Metropolitan Magistrate or a Magistrate of the first class having jurisdiction in the place where the said person ordinarily resides ; and thereupon the provisions of sections 82, 83, 84 & 85 of the Code

SUBHASH POPATLAL DAVE v. UNION OF INDIA 639 [ALTAMAS KABIR, CJI.] of Criminal Procedure, 1973 (2of1974), shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate ;

(b) by order notified in the Official Gazette direct the 8 said person to appear before such officer, at such place and within such period as may be specified in the order ; and if the said person fails to comply with such direction, he shall, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, C informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to one year or with fine or with both. D

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under clause (b) of subsection (1) shall be cognizable." E

45Copy pinpoint45. It will be seen from the provisions of Section 7 that if the appropriate Government has reason to believe that a person in respect of whom a detention order has been made, is absconding, or is concealing himself so that the order cannot be executed, the Government may take recourse to the F provisions of Sections 82, 83, 84 and 85 of the Code of Criminal Procedure and his property, as if the order directing him that he be detained were a warrant issued by the Magistrate. Section 7(1 )(b) also provides for penal consequences, in the event directions given thereunder, are not G' complied with by the proposed detenue.

46Copy pinpoint46. Accordingly, Section 7 empowers the Government to take recourse to either the provisions of the Code of Criminal Procedure relating to absconding persons or pass an order H

p. 640

A 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 i,yith fine or both.

47Copy pinpoint47. The provisions of Sections 6 and 7 of the National 8 Security Act, 1980, are identical to the provisions of Sections 6 and 7 of the COFEPOSA Act, 1974.

48Copy pinpoint48. In my view, the said provisions clearly enumerate the powers vested in the Authorities when a proposed detenue C 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 violatio,n of statutory provisions. Accordingly, in my view, the submissions made on behalf. of the Union of India and the State D of Maharashtra, cannot be accepted and absconsion cannot, therefor~. be made a ground for making an order of preventive detention. Neither in Dropti Devi's case (supra) nor in Amrit Lal Manchanda's ca~e or in M. Ahamedkutty's case had the above- mentioned provisions been broµght to the notice of the learned E Judges who heard the matters, but had no occasion to consider the same. -

49Copy pinpoint49. In order to arrive at a decision in these matters and to answer the question as to whether an order of preventive detention can continue to subsist after a long period had lapsed from the date of passing of the order, it will, first of all, be necessary to appreciate the difference between preventive detention and the ordinary criminal law providing for detention and arrest. While the Constitution, which is the cornucopia of all laws, accepts the necessity of providing for preventive detention, it also provides certain safeguards against arbitrariness and making use of the provision as a tool against political opponents. Since the said provision deprives a citizen of some of the basic and fundamental rights guaranteed to him under the Constitution, the. Courts have dealt with laws relating to preventive detention with great care and caution to ensure

SUBHASH POPATLAL DAVE v. UNION OF INDIA 641 [ALTAMAS KABIR, CJI.]

that the provision was not misused by the Investigating A Authorities as an easy alternative to proper investigation . . Normally, the life of a preventive detention order is one year. Such a period is intended to give the deteni.le, who is detained without any trial, an opportunity to introspect and reflect into his . past deeds, and to dissuade him from indulging in the same -B ir] future. In other words, ~he period of detention is intended not ' to punish the detenue, but to make him realize the impact of his earlier indiscretions on society and to discontinue the same.

50Copy pinpoint50. Both, the Revenue, as also the police authorities, C appear to be myopic in regard to the. dividing line between preventive detention and arrest for a crime actually committed. On account of the above, .the State and its authoriti.es have attempted to justify the continuance of the! validity of detention orders even after the lapse of several years after the passing of the detention order, citing principles such as a person cannot· D take 'advantage of his own wrong, in support thereof. Learned counsel for the respondent authorities have fused the two principles together in dealing with the question of preventive detention. A person evading service of an order of preventive detention cannot, in my view, be treated with the same yard- E stick as a person, accused of having committed a criminal offence and evading arrest to thwart the criminal process initiated against 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 H

'I

p. 642

A 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 B either against the national interest or the interest of society in the future and there is nothing on record to indicate that the proposed detenue had indulged in any such activity after the order of preventive detention was passed, it would, in my view, be illogical to pursue the execution of the detention order as c the arrest and detention of the proposed detenue would become irrelevant and would not achieve the object for which it had been passed.

·51. The decisions cited by Mr. Malhotra and Mr. Marlapalle, and in particular in Dropti Devi's case (supra), do not help the stand taken by the authorities in this regard. The concept of a person being prevented from taking advantage of his own wrong cannot, in my view, be applied in the case of a detention order where the object of passing such an order is quite different from proceeding against a person charged with having committed a criminal offence. In my view, the continued validity of a detention order would depend on whether the proposed detenue was in the record books of the authorities as a person habitually indulging in activities which were against the national interest and society in general and that it was, therefore, necessary in the public interest to detain him for a period of one year to prevent him from continuing with such activities and not to punish him as such. In Dropti Devi's case (supra) and in the several other decisions cited by the learned Additional Solicitor General, the Court had confined itself only to the question regarding the validity of the detention order, and in the process appears to have missed the main issue regarding the difference between an order of preventive detention and the issuance of a Warrant of Arrest against a person in connection with a particular offence. H

SUBHASH POPATLAL DAVE v. UNION OF INDIA 643 [ALTAMAS KABIR, CJI.]

52Copy pinpoint52. Accordingly, after taking into account the submissions made on behalf of the respective parties on the different aspects of the detention orders, I am inclined to hold that not only is a proposed detenue entitled to challenge the detention order at the pre-execution stage, but he is also entitled to do so after several years had elapsed after the passing of the detention order on grounds other than the five grounds enumerated in Alka Subhash Gadia's case(supra). I am also inclined to hold that orders of detention must not, as a matter of course, be read as an alternative to the ordinary laws of the land to avoid the rigours of investigation in order to make out c a case for prosecution against the proposed detenue. I also hold that 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 0 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. E

53Copy pinpoint53. 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 following matters include Appeals arising out of the Special Leave Petitions and Writ Petitions either filed by the detenues themselves or their agents: H

p. 644

A (i) Writ Petition ·(C'rl.) No.· 137 of 2011, filed by Subhash Popatlal Dave. (ii) Writ Petition (Crl.) No. 35 of 2011, filed by Suresh D. Hotwani.

B (iii) Writ Petition (Crl.) No. 138 of 2011, filed by Nitin Prakashchand Kothari. · (iv) Writ Petition (Crl.) No. 249 of 2011, filed by Manju R. Agarwal, wife of proposed detenue, Rajesh Kumar Agarwal. c . (v) Criminal Appeal @ SLP (Crl.) No. 1909 of 2011, filetl by Anil Kailash Jain. (vi) Criminal Appeal @SLP(Crl.) No. 1938 of 2011, filed by Sureshkumar Ukchand Jain. D (vii) Criminal Appeals @ SLP (Crl.) Nos. 2091-2092, filep by Rajesh Verma.

54Copy pinpoint54. However, the Transferred Cases @ Transfer Petition (Crl.) Nos. 38-39 of 2013, filed by Vijay Ram Bilas Gupta, Writ E Petition (Crl.) No. 220 of 2011, filed by Kamlesh N. Shah and Writ Petition (Crl.) No. 14 of 2012, filed by Mohan Lal Arora are, in my judgment, pre-mature and are disallowed at this stage.

55Copy pinpoint55. Special Leave Petition (Crl.) No. 2442 of 2012, filed by Suresh D. Hotwani is directed against the order dated 5th January, 2011, passed by the Division Bench of the Bombay High Court in Criminal Writ Petition No. 1645 of 2010, rejecting the prayer made for quashing the detention order passed G against Nitesh Ashok Sadarangani on 12.3.2001. Since the said detention order is being quashed in Writ Petition (Crl.) No. 35 of 2011, also filed by the Petitioner directly against the detention order, the order of the High Court impugned in the Special Leave Petition has necessarily to be set aside also. H Criminal Appeal @ S.L.P.(Crl.) No. 2442 of 2012 is,

SUBHASH POPATLAL DAVE v. UNION OF INDIA 645 • accordingly, allowed and the order of the High Court impugned therein is set aside.

GYAN SUDHA MISRA, J. 1. Having deliberated over the arguments advanced by learned counsel for the contesting parties in the light of the ratio of the authoritative pronouncements of this Court referred to hereinafter on the issue involved herein which also includes a Constitution Bench judgment, I have not been able to persuade myself to accept the position that the Writ Petitions, Appeals and Transfer Cases under consideration are fit to be allowed. c

2. A common question initially arose in all these matters as to whether detention order passed under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (shortly referred to as 'the COFEPOSA Act 1974) could be challenged at the pre- D execution stage confined to the five exceptions carved out by this Court in the case of Addition.~1 Secretary to the Govt. of · India And Ors. vs. Atka Subhash Gadia And Anr. 1992 Supp (1) sec 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 sec 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 important question that has cropped up in all these petitions/appeals is as to whether the proposed H

p. 646