SUBHASH POPATLAL DAVE v. UNION OF INDIA & ANR.

[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

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

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

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

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

642 SUPREME COURT REPORTS (2013) 17 S.C.R.

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

644 SUPREME COURT REPORTS [2013) 17 S.C.R.

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

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

A detenues having absconded or evaded the execution of the detention order, who subsequently challenged the order of his detention even 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. For the sake of B brevity, I refrain from repeating the facts of each writ petition, Appeals and transfer petition herein which have been consolidated and heard as a batch, as they have already been recorded in the judgment and order of Hon'ble the CJI Justice Altamas Kabir. c 4. Learned counsels representing the petitioners' cause submitted, which again have been elaborately stated in the judgment and order of the Hon'ble CJI, that if the detention orders which were under challenge were no longer relevant and had become otiose as it ceased to have a live link between the order of detention and the subsequent circumstances when it loses its purpose, as also having regard to the fact that the object of a detention order is not to punish its citizen for a crime with which he has not been charged but to prevent him from committing 5uch crime in future then, whether such order of preventive detention can be held to be valid after a long lapse of time during which the order could not be executed as also the fact that it was not executed because the same was allowed to be challenged even at the pre-execution stage, for any ground available to the proposed detenue. Hence, if such order could not be executed as the detenue was evading execution by absconding or even by challenging it in a court of law on any ground available to him under the law, then whether such order of detention can be quashed and set aside merely due to the fact that it remained pending even before it was executed and consequently lost its efficacy and purpose due to long lapse of time.

5. The life and duration of the order of preventive detention is no doubt usually for a period of one year or the period to the extent which may be extended. But if the order H

SUBHASH POPATLAL DAVE v. UNION OF INDIA 647

[GYAN SUDHA MISRA, J.] of preventive detention gets enmeshed into litigation by virtue of its challenge on the ground that it was fit to be challenged even before it was executed or if the same could not be executed on account of the fact that the order of detention could not be served on the proposed detenue as he was absconding and evading his arrest, then whether such detention order is fit to be quashed and set aside merely due to efflux of time rendering the order of detention a nullity in spite of existence of valid, legal and sustainable grounds for issuance of the detention order.

6. There is absolutely no difficulty in accepting the unequivocal position that the purpose of passing the order of preventive detention is not punitive but merely preventive which clearly means that if the authorities are in possession of sufficient materials indicating that the proposed detenue had been indulging in economic offences violating the provisions and jumping the riders imposed by the COFEPOSA Act or other Acts of similar nature, then whether such order can be allowed to be set aside merely due to long lapse of time accepting the plea that there is no live link between the order sought to be quashed and the intention of the authorities to detain the detenue by virtue of such detention order. This Court in a series of decisions, some of which have been referred to hereinafter have consistently dealt with this question and have been pleased to hold that merely because the execution of the detention order has taken long years before it could be executed, the proposed detenue cannot be allowed to take advantage of the passage of time during which the detention order remain pending and thereafter take the plea that the order of detention is fit to be quashed due to its pendency on which the authorities had no control specially when the order of detention is allowed to be challenged before the appropriate court even at the pre-execution stage on any ground that may be available to him except of course the materials which has weighed with the authorities to pass the order of detention as it is obvious that justifiability of the material cannot be gone into H

648 SUPREME COURT REPORTS [2013) 17 S.C.R.

A at t11e pre-execution stage since the order of detention and the ground for such order is yet to be served on the proposed detenue as the proposed detenue was absconding or evading the execution of the order on him for one reason or the other.

7. It would be worthwhile to refer to some of the authorities B relied upon by the respondent- Union of India and the State of Maharashtra which clearly addresses the issues on the point involved herein. A judgment and order of the Constitution Bench may be cited as the first and foremost authority on the issue involved which is the matter of Sunil Fulchand Shah vs. Union C of India, (2000) 3 SCC 409 wherein the Constitution Bench observed that a person may try to abscond and thereafter take a stand that period for which detention was directed is over and, therefore, order of detention is infructuous. It was clearly held that the same plea even if raised deserved to be rejected D as without substance. It should all the more be so when the detenu stalled the service of the order and/or detention in custody by obtaining orders of the court. In fact, in Sayed Taher Bawamiya vs. Govt. of India, (2000) 8 SCC 630, the factual position shows that 16 years had elapsed yet this E Court rejected the plea that the order had become stale.

8. These aspects were once again highlighted in Hare Ram Pandey vs. State of Bihar & Ors., (2004) 3 SCC 289, Union of India VS. Amrit Lal Manchanda & Anr., (2004) 3 sec F 75 and Union of India vs. Vidya Bagaria (2004) 5 SCC 577. In yet another matter of Union of India & Ors. vs. Atam Parkash & Anr. (2009) 1 SCC 585, the detention order was challenged at the pre-execution stage which remained pending for long and the High Court had allowed the writ petition filed by the respondents detenue therein and quashed the detention G order restraining the appellants from enforcing the order. But, this Court overruled it and held that the judgment of the High Court was clearly unsustainable and hence was set aside. It was further held therein that the question as to whether it would be desirable to take the respondents (detenue) back to H

SUBHASH POPATLAL DAVE v. UNION OF INDIA 649

[GYAN SUDHA MISRA, J.]

custody shall be taken by the Government within two months A and appeal filed by the Union of India was allowed.

9. Similarly, in the case of Bhawarlal Ganeshma/ji vs. State of Tamil Nadu And Anr. (1979) 1 SCC 465, the appellant had evaded arrest and surrendered 3 years after making of 8 the order of detention but this Court had held that the order was still effective if detenu himself were to be blamed for delay. It is no doubt true that in this matter, the Court had further held that the purpose of detention under the COFEPOSA is not punitive but preventive and there must be a 'live and proximate link' so that if there is a long and unexplained delay between the order of detention and arrest of the detenue, the order of detention may be struck down unless the grounds indicate a fresh application of mind of the detaining authority to the new situation and the changed circumstances. But where the delay is adequately explained and is found to be the result of recalcitrant or refractory conduct of the detenu in evading the arrest, there is warrant to consider that the link is not snapped. On the contrary, it could be strengthened and that was what precisely happened in the said case. E

10. In yet another case of Vinod K Chawla vs Union of India & Ors., (2006) 7 SCC 337, this Court had occasion to consider regarding the effect of delay in execution of the detention order wherein their Lordships held that detenu evaded arrest and absconded and in spite of best possible efforts made by the authorities to serve the order, the order could not be executed. Taking the circumstances into consideration under which the order of detention could not be served, it was held that in View of detenue's own act of evading arrest, delay in execution of the order did not render the detention invalid.

11. This Court's decision in Union of India vs. Parasmal Rampuria, (1998) 8 SCC 402 also throws considerable light as to what would be the proper course for a person to adopt when he seeks to challenge an order of detention on the H

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

A available grounds like delay in execution of detention order, delay in consideration of the representation and the like and while dealing with the impact of such situations on the order of detention, it was observed therein that these questions were really hypothetical in nature when the order of detention had B not been executed at all and challenge is made at pre- execution stage. Their Lordships relied upon and observed as follows in paras 4 and 5 which is fit to be quoted herein for facility of reference:-

"4. In our view, a very unusual order seems to have been c passed in a pending appeal by the Division Bench of the High Court. It is challenged by the Union of India in these appeals. A detention order under Section 3(1) of the COFEPOSA Act was passed by the authorities on 13.9 .1996 against the respondent. The respondent before surrendering filed a writ petition in the High Court on 23.10.1996 and obtained ad interim stay of the proposed order which had remained unserved. The learned Single Judge after hearing the parties vacated the ad interim relief. Thereafter, the respondent went in appeal before the Division Bench and again obtained ad interim relief on 10.1.1997 which was extended from time to time. The writ appeal has not been still disposed of.

5. When the writ petition was filed, the respondent had not surrendered. Under these circumstances, the proper order which was required to be passed was to call upon the respondent first to surrender pursuant to the detention order and then to have all his grievances examined on merits after he had an opportunity to study the grounds of detention and to make his representation against the said grounds as required by Article 22(5) of the Constitution .............. "

12. In the matter of Hare Ram Pandey vs. State of Bihar & Ors., (2004) 3 SCC 289, effect of delay in execution of detention order was the principal issue for consideration before

SUBHASH POPATLAL DAVE v. UNION OF INDIA 651

[GYAN SUDHA MISRA, J.] the court. This Court held that the plea of delay taken by the person who himself was responsible for the delay having adopted various dilatory tactics cannot be accepted. In this matter, the question regarding service of the detention order after expiry of the period specified therein was a subject matter of consideration wherein it was contended that the order was yet to be executed. This Court held that the grounds like delay in execution of the order, delay in consideration of the representation etc. are hypothetical in nature. Where a person against whom detention order passed was absconding, plea taken by him or on his behalf that the period for which detention c was directed expired, deserved to be rejected. While considering this question, it was held that although the nature and object of the preventive detention order is anticipatory and non-punitive in nature, object is to maintain public order and security of State. This gives jurisdiction to curtail individual 0 liberty by passing the detention order. Order of detention is passed on the basis of subjective satisfaction of detaining authority.

13. The legal position was reiterated in the matter of Dropti Devi and Anr. vs. Union of India & Ors., (2012) 7 SCC 499 E wherein one of the questions which arose for consideration was whether the detenue could be allowed to take advantage of his own wrong on the plea that the maximum period of detention prescribed having expired and the detenue in the said case having failed to join investigation despite High Court's order F would justify questioning of such order. This Court held that the detenue could not take advantage of his own wrong and challenge the detention order on the plea that the purpose of execution of detention order no longer survived as maximum statutory period of detention would have lapsed by then. G

14. From the ratio of the aforesaid authoritative pronouncements of the Supreme Court which also includes a Constitution Bench judgment having a bearing and impact on the instant matters, the question which emerges is that if the H

652 0Ur'REME COURT REPORTS [2013) 17 S.C.R.

A order of detention is allowed to be challenged on any ground by not keeping it confined to the five conditions enumerated in the case of Alka Subhash Gadia except the fact that there had been sufficient materials and justification for passing the order of detentio11 which could not be gone into for want of its B execution, then whether it is open for the proposed detenue to contend that there is no live link between the order of detention and the purpose for which it had been issued at the relevant time. In the light of ratio of the decisions referred to hereinabove and the law on preventive detention, it is essentially c 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 quashed and set aside and merely the length of time and liberty to challenge the same at the pre- execution stage which obviated the execution of the order of preventive detention cannot be the sole consideration for holding that the same is fit to be quashed. When a proposed detenue is allowed to challenge the order of detention at the pre-execution stage on any ground whatsoever contending that the order of detention was legally unsustainable, the Court will have an occasion to examine all grounds except sufficiency of the material relied upon by the detaining authorities in passing the order of detention which legally is the most important aspect of the matter but cannot be gone into by the Court as it has been allowed to be challenged at the pre-execution stage when the grounds of detention has not even been served on him.

15. Thus, if it is held that howsoever the grounds of detention might be weighty and sustainable which persuaded the authorities to pass the order of detention, the same is fit to be quashed merely due to long lapse of time specially when G the detenue is allowed to 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- H execution stage on any ground, evade the detention in the

SUBHASH POPATLAL DAVE v. UNION OF INDIA 653

[GYAN SUDHA MISRA, J.] 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, in my view, would render the very purpose of preventive 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 rl'!lied upon by the authorities for passing the order of detention so as to contend that at the c relevant time when 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 reason or the other specially when the proposed 0 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.

16. Therefore, in my view, 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 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 wa~ passed at the relevant time but could not be served was based on sufficient material justifying the order of detention. Remedy to this situation has already been offered by this Court in the matter of Union of India Vs. Parasmal Rampuria, (Supra) viz. (1998) G 8 sec 402 wherein it was observed as under:

" the proper order which was required to be passed was to call upon the Respondent first to surrender pursuant to the detention order and then to have all his grievances H

654 SUPREME COURT REPORT:? [2013] 17 S.C.R.

A examined on merits after he had an opportunity to study the grounds of detention and to make his representation against the said grounds as required by Article 22(5) of the Constitution of India ....... "

17. The consequence that follows from the above is that 8 each individual/proposed detenue will have to be served with the order of detention which had been passed against them alongwith the grounds and the materials relied upon by the authorities to pass the order of detention leaving it open to them to challenge the correctness of the order by way of a C representation before the appropriate Authority or Court as per procedure prescribed. It is no doubt true that the materials relied upon at the relevant time would be on the basis of which the order of detention was passed so as to hold whether the materials were sufficient and justified or not but when the D correctness of the order of detention is challenged in a court of law at the pre-execution stage, then setting aside the order of detention merely on the ground of long lapse of time might lead to grave consequences which would clearly clash with the object and purpose of the preventive detention laws. E

18. Therefore, I am of the view that since this Court has already held that the order of detention can be challenged on any ground beyond five conditions even at the pre-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 H

SUBHASH POPATLAL DAVE v. UNION OF INDIA 655

[GYAN SUDHA MISRA, J.] 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 as that has been the consistent view of this Court reflected in the decisions referred to hereinbefore. 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 detent~on 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 c 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 succeeded in pre-empting the order by challenging it at the pre-execution stage 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. The alternative view is bound to operate as a convenient tool in the hands of the law-breakers which has not been approved earlier by this Court in the decisions referred to earlier.

19. A fall out and consequence of the aforesaid discussion, therefore, in my view, is that the order of detention cannot be quashed and set aside merely due to long lapse of time on the specious plea that there is no live link between the order of detention and the subsequent situation. I am, therefore, of the considered opinion that the order of detention is not fit to be quashed merely due to long lapse of time H

656 SUPREME COURT REPORTS (2013] 17 S.C.R.

A specially when the orders of detention have been allowed to be challenged even at the pre-execution stage on any ground. It is, therefore, legally appropriate to serve the order of detention on the proposed detenues leaving it open to them to challenge the same after the grounds are served on them B so as to appreciate whether there had been sufficient materials before the detaining authorities to pass the orders of detention which were existing at the relevant time and approve or disapprove the same. In any view, events subsequent to the passing of the order of detention is neither before us nor c would be relevant at this stage while adjudging the correctness and legality of the order of preventive detention when the said orders were passed specially when this Court had no occasion to peruse the materials which prompted them to pass the order of preventive detention. In fact, there is no material before this Court even to arrive at a definite finding as to whether the 0 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 as the limited issue before this Court is whether the order E of detention passed against the proposed detenues which were challenged at the pre-execution stage is fit to be quashed merely due to the passage of time. It would be equally hypothetical to observe that in case the orders of detention were served and approved by the Advisory Board F 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 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 in my view to hold that the order of detention is fit to be quashed

SUBHASH POPATLAL DAVE v. UNION OF INDIA 657

[GYAN SUDHA MISRA, J.] merely because there is no live link between the existing period and situation and the date on which the order of detention was passed. I find it hard to ignore the ratio of authoritative pronouncements of this Court including a Constitution Bench judgment referred to hereinbefore on the issue holding therein that the long lapse of time will not be a valid consideration to set aside the order of detention and may be treated as stare decisis on the point involved.

20. As a consequence of the analysis in regard to the validity of the orders of detention challenged by the petitioners and appellants herein, I deem it correct and legally appropriate c 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 D representation against the order of detention before the competent authority which is the next legal stage after the order of detention is served on the proposed detenue. Holding it otherwise, in my view, would result into acceptance of a sordid situation akin to the adage of "Let be gone be bygone" which cannot be swallowed as that would clearly be defeating the very object and purpose of the preventive _detention laws encouraging the proposed detenue to stay away and twist the arms of law misusing the provisions to their advantage. All the matters are consequently fit to be dismissed and are dismissed leaving it open to the Petitioners/Appellants to take recourse to remedies available to them in accordance with the provisions and procedure established by law after the grounds of detention are served on them. G CHELAMESWAR, J.

"The task of this Court to maintain a balance between liberty and authority is never done, because new conditions today upset the equilibriums of yesterday. The seesaw between freedom and power makes up most H:

658 SUPREME COURT REPORTS (2013] 17 S.C.R.

A of the history of governments, which, as Bryce points out, on a long view consists of repeating a painful cycle from anarchy to tyranny and back again. The Court's day-to- day task is to reject as false, claims in the name of civil liberty which, if granted, would paralyse or impair B authority to defend existence of our society, and to reject as false claims in the name of security which wquld undermine our freedoms and open the way to oppression ..... "

- - Justice Jackson in c American Communications Association, C. I. 0. Vs. Charles T. Douds (339 US 385) (94 Led 925 at 968].

2. In my opinion, it is a statement which every judge of 0 Constitutional Courts vested with the authority to adjudicate the legality of any state action challenged on the ground that such action is inconsistent with civil liberties guaranteed under the Constitution must always keep in mind while exercising such authority.

E 3. The core question in these matters is whether this Court would be justified in exercising its jurisdiction to examine the legality of the action of the State in seeking to execute preventive detention orders (passed long ago) at the pre execution stage on the claim of each one of the petitioners F herein that such execution would violate the fundamental rights of the proposed detenues.

4. The facts are elaborately described in the judgment of Hon'ble the Chief Justice of India. There is no need to repeat. G Suffice to say that an order of preventive detention either under the COFEPOSA Act or the National Security Act is pending unexecuted for varying periods ranging from 2 to 10 years approximately.

5. Hence, these petitions complaining that permitting the H State to execute such preventive detention orders would be

SUBHASH POPATLAL DAVE v. UNION OF INDIA 659

[CHELAMESWAR, J.] violative of the fundamental rights under Articles 14, 19, 21 and A 22 of the Constitution guaranteed to the proposed detenus. It is fervently argued on behalf of the petitioners that in view of the inordinate delay in the execution of the impugned detention orders in each of the cases, live nexus between the purpose sought to be achieved by the orders of preventive detention and B the cause for such orders of detention stood snapped.

6. As already noticed, in the judgment of Hon'ble the Chief Justice of India, the essential argument of the State in defence is that the proposed detenus (either personally or through proxy) C may not be heard to advance such arguments in view of the fact that such delay as is complained of is a consequence of the fact that the proposed detenus evaded the process of law by absconding.

7. Personal liberty is the most valuable fundamental right D guaranteed under the Constitution. Deprivation of such liberty is made impermissible by the Constitution except as authorised under the provisions of Articles 20, 21 and 22. Deprivation of personal liberty by incarceration as a penalty for the commission of an offence is one of the recognised modes by which State E can abridge the fundamental right of personal liberty. Even in such case the authority of the state is circumscribed by the limitations contained under Articles 20 and 21 of the Constitution of India.

8. Article 22 of the Constitution recognises the authority F 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 G nature and scope of the authority to preventively detain a person, fell for the consideration of this Court on innumerable occasions.

9. This Court consistently held that preventive detention "does not partake in any manner of the nature of punishment" H

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

A but taken "by way of precaution to prevent mischief to the C!>mmunity" 1• Therefore, necessarily such an action is always based on some amount of "suspicion or anticipation''. Hence, the satisfaction of the State to arrive at a conclusion that a person must be preventively detained is always subjective. B Nonetheless, the legality of such subjective satisfaction is held by this Court to be amenable to the judicial scrutiny in exercise of the jurisdiction conferred under Articles 32 and 226 of the Constitution on certain limited grounds.

10. One of the grounds on which an order of preventive detention can be declared invalid is that there is no live nexus between (1) 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 State could not have rationally come to a conclusion that it is necessary to detain a person without a charge or trial.

E 11. The question before us is not whether the detention order impugned in these matters is illegal on the day of their making on any of the grounds known to law. Whether the execution of the preventive detention order (which might otherwise be valid) after long lapse of time reckoned from the date of the detention order would render the detention order itself illegal or would render the execution of the detention order illegal.

12. It is the settled position of law declared by this Court in a number of cases that absence of live nexus between material forming the basis and the satisfaction (opinion) of the State that it is necessary to preventively detain a person is definitely fatal to the preventive detention order. All those cases where Courts have quashed the orders of preventive detention on the theory of lack of 'live nexus' are cases where the detention orders were executed but not cases of non-execution

SUBHASH POPATLAL DAVE v. UNION OF INDIA 661

[CHELAMESWAR, J.] of the detention orders for a long lapse of time after such orders came to be passed.

13. Whether the test of live nexus developed by this Court in the context of examining the legality of the order of preventive detention can be automatically applied to the question of the 8 legality of the execution of the preventive detention orders where there is a considerable time gap between the passing of the order of preventive detention and its execution is the real question involved in these matters. To answer the question, we must analyse the probable reason for the delay in executing the preventive detention orders.

14. There could be two reasons which may lead to a situation by which the preventive detention order passed by the competent authorities under the various enactments could remain unexecuted, (1) the absconding of the proposed detenu from the process of law (2) the apathy of the authorities responsible for the implementation of the preventive detention orders.

15. The legislature was conscious of the fact that it can happen in some cases that the execution of the preventive detention order could be scuttled by the proposed detention either by concealing himself or absconding from the process of law. Therefore, specific provisions are made in this regard under various enactments dealing with the preventive detention. F For example, Section 7 of the COFEPOSA Act recognises such a possibility and stipulates as follows:-

"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 G made has absconded or is concealing himself so that the order cannot be executed, the Government may -

(a) make a report in writing of the fact to a Metropolitan Magistrate or a Magistrate of the first c!ass having H

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

A jurisdiction in the place where the said person ordinarily resides; and thereupon the provisions of sections 82, 83, 84 & 85 of the Code of Criminal Procedure, 1973 (2of1974), shall apply in respect of the said person and his property as if the.order B directing that he be detained were a warrant issued by the Magistrate; ·

(b) by order notified in the Official Gazette direct the said person to appear before such officer, at such place and within such period as may be specified c 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, informed the officer mentioned in the order of the D 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.

E (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2of1974), every offence under clause (b) of sub-section (1) shall be cognizable."

16. It can be seen from the said section 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 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.

17. In substance, the property of the proposed detenu could H

SUBHASH POPATLAL DAVE v. UNION OF INDIA 663

[CHELAMESWAR, J.] be attached and perhaps even be confiscated in an appropriate A case.

18. Apart from that the State can also by notification of official gazette direct proposed detenu to appear before an. officer specified in the said notification at such place and time. 8 Failure to comply with such notified direction on the part of the proposed detenu - without a reasonable cause - is made an offence punishable either with imprisonment for a term extending upto one year or with fine or both.

19. If a preventive detention order is to be quashed or C declared illegal merely on the ground that the order remained unexecuted for a long period without examining the reasons for such non-execution, I am afraid that the legislative intention contained in provisions such as Section 7(b) of th.e COFEPOSA Act would be rendered wholly nugatory. D Parliament declared by such provision that an (recalcitrant) individual against whom an order of preventive, detention is issued is under legal obligation to appear before the notified authority once a notification contemplated under Section 7(b) of COFEPOSA Act is issued. We have already .noticed that failure to appear without a reasonable excuse woula be an offence and render the defaulter liable for a punishment of imprisonment. Holding that the preventive detentieln ortiers are themselves rendered illegal, on the basis of the live nekus theory (which, in my opinion, is valid only for examining the legality of the order, viz-a-viz the date on which the order is passed) would not only exonerate the 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 ?(b) of the COFEPOSA Act. G

20. This question fell for consideration of thic Court on more than one occasion. -J_n Bhawarlal Ganeshmalji Vs. State of Tamil Nadu & Anr., (1979) 1 SCC 463, this Court speaking through Justice 0. Chinnappa Reddy held - H

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

A " ...... where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the 'link' not snapped but strengthened."

B It was a case where the detenu evaded the arrest for a priod of more than 3 years but eventually surrendered himself before the Commissioner of Police, Madras and then challenged the order of detention. One of the submissions before this Court was that the detentibn order must be considered to have lapsed or ceased to be effective in the C absence of the fresh application of mind of the detaining authority to the question of continuing necessity for preventive detention. This Court rejected the submission.

21. The said principle was followed in M. Ahamedkutty D Vs. Union of India & Anr., (1990) 2 SCC 1.

22. Once again in Union of India & Ors. Vs. Arvind Shergil/ & Anr., (2000) 7 SCC 601, this Court held that -

"we do not think that it would be appropriate to state that E merely by passage of time the nexus between the object for which the husband of the respondent is sought to be detained and the circumstances in which he was ordered to be detained has snapped".

F It vvas a case where the detention order was challenged at the pre-execution stage before the High Court and the High Court had stayed the execution of the order and the matter was pending for some time. After losing the matter in the High Court, the proposed detenu approached this Court without surrendering and advanced the argument that the live nexus snapped in view of the delay in executing the preventive detention order. The submission was rejected.

23. Therefore, I am of the opinion that 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

SUBHASH POPATLAL DAVE v. UNION OF INDIA 665

[CHELAMESWAR, J.] all those cases, where proceedings such as the one contemplated under Sectio.n 7 of the COFEPOSA Act were initiated consequent upon absconding of the proposed detenu, the challenge to the detention orders on the live nexus theory is impermissible. Permitting such an argument would amount to enabling the law breaker to take advantage of his own s conduct which is contrary to law.

24. Even in those cases where action such as the one contemplated under Section 7 of the COFEPOSA Act is not initiated, the same may not be the only consideration for holding C the order of preventive detention illegal. This Court in Shafiq Ahmad Vs. District Magistrate, Meerut, (1989) 4 SCC 556 held so and the principle w~s followed subsequently in M. Ahamedkutty Vs. Urrion of India & Anr., (1990) 2 SCC 1, wherein this Court opined that in such cases, the surrounding circumstances must be examined. D

25. In both Shafiq Ahmad and Ahamedkutty's cases, these questions were examined after the execution of the detention order. Permitting an absconder to raise such questions at the pre-detention stage, I am afraid would render the jurisdiction of this Court a heaven for characters of doubtful respect for law.

26. This Court in the case of Alka Subhash Gadia (supra), emphatically asserted that - "it is not correct to say that the courts have no power to entertain grievances against detention order prior to its execution" This Court also took note of the fact that such an inquiry had indeed been undertaken by the Courts in a very limited number of cases and in circumstances glaringly untenable at the pre-execution stage. G

27. The question whether the five circumstances specified in Alka Subhash Gadia case (supra) are exhaustive of the grounds on which a pre-execution scrutiny of the legality of preventive detention order can be undertaken was considered by us earlier in the instant case. We held that the grounds are H

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

A 'not exhaustive. But that does not persuade me to hold that such a scrutiny ought to be undertaken with reference to the cases of those who evaded the process of law.

28. For all the above mentioned. reasons, I regret my B. inability to agree with the opinion delivered by Hon'ble the Chief Justice of India. I dismiss all the matters. Bibhuti Bhushan Bose Matters disposed of.