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Wednesday, July 24, 2013

Preventive detention order passed under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as "the COFEPOSA Act, 1974"= whether a detention order passed under the provisions of the Conservation of Foreign Exchange and 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 Addl. Secretary, Govt. of India vs. Alka Subhash Gadia [(1992) Supp. (1) SCC 496], or whether such challenge could be maintained on other grounds as well. = (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 Alka Subhash Gadia's case (supra), and that the five exceptions carved out in Alka Subhash Gadia's case were illustrative and not exhaustive. (ii) Whether any live link could be said to exist between 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 indicated in the detention order? 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 fact 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 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 passed? (vi) Whether the provisions of Section 7 of the COFEPOSA Act, 1974, and Section 7 of the National Security Act, 1980, can be made the basis for making an order of preventive detention? = 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, in my view, 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. 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. = 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 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 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.- 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 question whether the five circumstances specified in Alka Subhash Gadia case (supra) are exhaustive of the grounds on which a pre-execution scrutiny of the legality of preventive detention order can be undertaken was considered by us earlier in the instant case. We held that the grounds are not exhaustive.[4] 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 inability to agree with the opinion delivered by Hon’ble the Chief Justice of India. I dismiss all the matters.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40586

|REPORTABLE            |ALTAMAS KABIR, GYAN SUDHA MISRA, J. CHELAMESWAR


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL ORIGINAL JURISDICTION

                     WRIT PETITION (CRL) NO.137 OF 2011


1


2 SUBHASH POPATLAL DAVE                 … PETITIONER


                         VS.



           2 UNION OF INDIA & ANR.                      … RESPONDENTS


                                    WITH

                  W.P. (CRL) NOS.35, 138, 220 & 249 OF 2011
                        AND W.P. (CRL) NO.14 OF 2012

                                    WITH

             Crl.A. NO.932 OF 2013 (@ SLP (CRL) NO.1909 OF 2011)
             Crl.A. NO.931 OF 2013 (@ SLP (CRL) NO.1938 OF 2011)
           Crl.A. NO.930 OF 2013 (@ SLP (CRL) NO.2442 OF 2012) AND
                        Crl.A. NOS. 961-962  OF 2013
                       @ SLP(CRL)NOS.2091-2092 OF 2012

                                    WITH

                   TRANSFERRED CASE (CRL.) NOS.2-3 OF 2013
                  @ TRANSFER PETITION (CRL.) NOS.38-39/2013

                               J U D G M E N T


ALTAMAS KABIR, CJI.


1.    Leave granted in  the  Special  Leave  Petitions.   Transfer  Petition
(Crl.) Nos.38-39 are allowed.



2.    The common  thread  which  runs  through  these  matters  being  heard
together is the challenge thrown in each matter to detention  orders  passed
either against the Petitioners themselves  or  the  persons  represented  by
them.  The common question of law involved in these Appeals, Writ  Petitions
and Transfer Petitions  is
whether  a  detention  order  passed  under  the
provisions of  the  Conservation  of  Foreign  Exchange  and  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 Addl.  Secretary,  Govt.  of India vs. Alka Subhash Gadia [(1992) Supp. (1) SCC  496],  or  
whether  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, 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 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 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.



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  Subhash  Gadia's  case,  
it  would  result  in
restrictions being imposed on the powers vested in the Supreme  Court  under Article 32 and in the High Courts under Article  226  of  the  Constitution.
Mr. Rohatgi submitted that with the  passage  of  time  since  the  decision
rendered in Alka Subhash Gadia's case in 1992,
 new  grounds  of  challenge,
such as
  absence of live link  and  intervention  of  Settlement  Proceedings
under the Customs Act, 1962, have been canvassed which could not  have  been
contemplated in Alka Subhash Gadia's case  and
cannot  be  ignored  in  the
facts of cases now being brought before the Courts.
Mr.  Rohatgi  submitted
that a detenue must, therefore, be held to have the right to  challenge  the
detention  order  passed  against  him,  at  the  pre-execution  stage,   on
different grounds in addition to the five  exceptions  carved  out  in  Alka
Subhash Gadia's case, but each  matter  would  have  to  be  considered  and
decided on its own set of facts.



5.    In all these cases, the common refrain is that the  object  sought  to
be 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.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  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.



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 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  passed,  the  very
reason for the detention order stood eroded.
The detention order, which  was
to be valid for a period of one year, outlived 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  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,  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  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.673/89/97-CUS.VIII dated 18.8.1997, issued  by  the  Joint  Secretary,
Government of India, under Section  3(1)  of  the  COFEPOSA  Act,  1974,  be
declared void, unconstitutional and illegal in the interest of justice.



8.    The next case is that of Nitish Prakashchand  Kothari  [W.P.(Crl)  No.
138 of 2011], who is himself the proposed detenue under the detention  order
dated 3.12.2009.
The said order has been  challenged  on  several  grounds,
including the ground relating to the existence of a live  link  between  the
preventive detention order and  the  circumstances  prevailing  today.
 Mr.
Rohatgi submitted that in the present case more than three and a half  years
have passed since the impugned detention  order  was  passed  and  there  is
nothing on record to indicate that the proposed detenue had  or  was  likely
to indulge in activities described in the detention order.



       Accordingly,  the  order  of  detention  passed  in  respect  of  the
Petitioner is required to be quashed.



9.    In Suresh D. Hotwani's 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 present  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,  Nitesh
Ashok Sadarangani.



10.  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
detention order had become stale since there  is  no  material  to  indicate
that the proposed detenue had indulged in any activity  during  this  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 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 owing  to  passage  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  of  India[(2008)  16  SCC  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 serving the  detention  order,  the
same had lost its very purpose and was, therefore, liable to be quashed.



11.   S.L.P. (Crl.) No. 1909 of 2011 has been filed  by  Anil  Kailash  Jain
against the judgment and order dated 5.1.2011  passed  by  the  Bombay  High
Court in Criminal Writ Petition No.  2675  of  2010,  whereby  several  Writ
Petitions, including that filed by Suresh D. Hotwani, were disposed of.   In
the instant case, the detention order  was  passed  on  13.12.2007  and  the
challenge thereto was taken up for consideration by the  Bombay  High  Court
along with several other matters,  including  the  Writ  Petition  filed  by
Suresh D. Hotwani (Criminal Writ Petition No. 1645 of 2010) and  Ajay  Bajaj
(Criminal Writ Petition No. 103 of 2009).  The same were disposed of by  the
Bombay High Court by a common judgment dated 5.1.2011.  In  fact,  the  same
arguments, as were advanced in  Suresh  D.  Hotwani's  case,  were  advanced
regarding the absence of a 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  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.



12.   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 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 before its execution, which  question  was  negated  in  the
judgment and order dated 10.7.2012.



13.   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 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 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 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, the  detention  order  has
now been challenged in these Special Leave Petitions on  grounds  which  are
similar to the grounds taken in the  earlier  matters,  namely,  that  seven
years had passed since the detention order had been  issued  for  a  limited
period of one year.
The order was also challenged on the  ground  that  the
High Court had failed to appreciate the fact that  an  order  of  preventive
detention is not to punish the detenue for having committed an  offence  but
to prevent him from doing so.  It was submitted that  the  cause  of  action
for challenge of the detention order at this  stage  was  on  grounds  which
were totally different from those taken in  the  Writ  Petition  before  the
High Court.  Reliance was placed on  several  decisions  of  this  Court  in
Maqsood Yusuf Merchant (supra), Yusuf  Razak  Dhanani  Vs.  Union  of  India
[W.P.(Crl.) No. 132 of 2007] and Sanjeev  Jain  Vs.  Union  of  India  [Crl.
Appeal No. 1060 of 2010,  wherein  the  detention  orders  were  quashed  on
account of absence of any live link between  the  detention  order  and  the
attempt now being made to detain the proposed detenues on the basis  of  the
same order, without any fresh material to indicate that  after  the  passing
of the detention order the proposed detenues had  indulged  in  acts,  which
were similar to those indicated in the detention order.



14.   Transfer Petition (Crl.) Nos. 38-39 of 2013 have  been  filed  by  one
Vijay Ram Bilas Gupta, against  whom  a  detention  order,  being  No.  PSA-
1211/CR-21(1)/SPL-3(A), was passed on 23.1.2012.  Prior to  the  passing  of
the detention order, the 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  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 appropriate relief, if any.



15.   Pursuant to the  leave  granted  by  this  Court,  on  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,  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 13.6.2012, 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 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  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.



16.   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  October  and  November,  2010,  in  respect  whereof  the
Petitioner was arrested on 2.11.2010 and enlarged  on  bail  on  14.12.2010.
It was submitted, as in other cases, that there  is  nothing  on  record  to
indicate that anything has been done by the Petitioner, after the  detention
order was passed till date.
The other relevant ground of challenge is  that
when the Settlement Commission under the  Customs  Act,  1962,  had  granted
conditional immunity under Sub-section (1) of Section 127H  of  the  Customs
Act, there could be no further ground for either issuing or continuing  with
the detention order, which arises out of the facts in respect of  which  the
Settlement Commission had granted immunity to the Petitioner.



17.   Writ Petition (Crl.) No. 14 of 2012, filed by Mohan Lal Arora, is  for
quashing Detention Order No. 673/18/2011-CUS.VIII  dated  8.9.2011,  on  the
same grounds, as urged in the other matters relating  to  delay  in  issuing
the detention order on stale  grounds.   It  was  also  contended  that  the
Detaining Authority acted  merely  as  a  rubber  stamp  of  the  Sponsoring
Authority, without applying its mind independently.  It  was  further  urged
that, as in other matters, the Sponsoring  Authority  took  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.



18.   Writ Petition (Crl.) No. 249 of 2011 filed by Manju R. 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  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 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  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.



19.   It was urged that the detention order has lost  its  significance  and
relevance  in  view  of  the  immunity  from  prosecution  granted  by   the
Settlement Commission under Sub-section (1) of Section  127-H  of  the  said
Act.



20.   The last of this batch of matters, which was heard together,  is  Writ
Petition (Crl.) No. 220 of 2011, filed by one Kamlesh N.  Shah,  the  father
of the proposed detenue, Bhavik 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 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 16.9.2011, after a lapse of more than  nine  months  from  the
date of his arrest.  The Petitioner has also taken  a  ground  that  certain
vital and material documents, as indicated in Ground A of the Petition,  had
not been placed before the Detaining Authority, as a  result  of  which  the
detention order stood vitiated on the ground  of  non-application  of  mind.
Reference was made to the several decisions of this Court in Asha  Devi  Vs.
K. Shivraj [(1979) 1 SCC  222];  State  of  U.P.  Vs.  Kamal  Kishore  Saini
[(1988) 1 SCC 287]; and Ayya alias Ayub Vs. State  of  U.P.  [(1989)  1  SCC
374], and several other cases,
where this Court had quashed  the  orders  of
detention, 
when relevant documents which could have had a direct bearing  on
the detention order, had not been placed  before  the  Detaining  Authority.
It was urged that, in the instant case,  the retraction of  the  detenue  on
various dates was not placed before the Detaining Authority, which not  only
prejudiced  the  detenue,  but  also  resulted  in  the  illegal  order   of
preventive detention being passed against him.



21.   Responding to Mr. Mukul Rohatgi’s submissions as also the  submissions
made  by  the  other  learned  counsel,  the  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  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
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).



22.   In addition, Mr. Malhotra submitted that the  delay  in  execution  of
the order of detention was mostly on account of 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
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  under  no
circumstances be allowed  to  take  the  benefit  of  his  own  wrong.  
Mr.
Malhotra submitted that the same principle had also 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.

23.   On the  ground  of  the  detention  order  having  become  stale,  Mr.
Malhotra urged that as was pointed out by this Court in Saeed Zakir  Hussain
Malik Vs. State of Maharashtra [(2012) 8 SCC 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  SCC  465],
wherein
it had been urged that the detention order was liable to be quashed  on  the ground of delay since it had been passed in 2009 and had not  been  executed till that date.  
Mr. Malhotra pointed out that
this Court  held  that  while
it is true that the purpose of detention  under  the  COFEPOSA  Act  is  not punitive but preventive and that there must be a  live  and  proximate  link between the grounds of detention alleged by the Detaining Authority and  the purpose of detention, and that in appropriate cases it may be  assumed  that
the live link is snapped, one may strike down an  order  of  detention,  but where the delay is found to be on account of  the  recalcitrant  conduct  of the detenue in evading arrest, it may be considered that the  link  had  not snapped, but had been strengthened. 
 In  the  said  case,  the  detenue  was
found to be absconding and action was accordingly taken under Section  7  of
the COFEPOSA Act and he was declared to be a proclaimed  offender.   Despite
the several efforts made to apprehend the proposed detenue, he could not  be
arrested till he surrendered on 1st February,  1978,  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.

24.   Mr. Malhotra also referred to the decisions of this Court in Union  of
India Vs. Amrit Lal Manchanda [(2004) 3 SCC 75] as also  in  M.  Ahamedkutty
Vs. Union of India [(1990) 2 SCC 1],
wherein it had also been observed  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 Shergill [(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  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  SCC  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.

25.   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.



26.   It was lastly submitted that for the purpose  of  detaining  a  person under the COFEPOSA Act, a Warrant of Arrest is issued  under  Section  4  of the Act and the said warrant continues to be in force  unless  the  same  is executed, withdrawn or cancelled.   
Once a valid warrant  had  been  issued,
it could not be taken as a  ground  to  quash  the  detention  order  simply because the detenue had been successful  in  evading  arrest  or  detention.
The learned ASG, therefore, prayed that the  Writ  Petitions  filed  by  the
Petitioners, as also the  Appeals and the Transfer  Petitions,  were  liable
to be dismissed.



27.   Out of the 11  matters  heard  together,  detention  orders  had  been
passed by the State of Maharashtra, under delegated powers, in six  matters.
 Dealing with each case on its  own  merit,  Mr.  B.H.  Marlapalle,  learned
Senior Advocate, who appeared on behalf of the State of Maharashtra  in  all
the  matters,  submitted  that  in  Nitish   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  the  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 urged that the proposed detenue was claiming parity with  the
order 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 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  order  for  about  two
years, his Petition deserves to be dismissed.



28.   With regard to Suresh Kumar Ukchand Jain's  case  [S.L.P.  (Crl.)  No.
1938 of 2011 (now Appeal)], the detention 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.  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 of the authorities  themselves,
since in the affidavit filed by the  Detaining  Authority  before  the  High
Court,  it was indicated  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  20.4.2007.
Mr. Marlapalle submitted  that  when  an  attempt  was  made  to  serve  the
detention order on the Appellant at his permanent address on 30.5.2007,  the
Appellant was reported not to  be  living  at  the  address  given  and  the
occupant of the room, one Neena Modi, informed the police officer  concerned
that the detenue was not staying at the said address and that the  Appellant
had given five different addresses, but the address at  Vashi,  Navi  Mumbai
had not been furnished.  However, Mr.  Marlapalle  accepted  the  fact  that
there is no explanation provided as to why the detention order could not  be
executed by taking recourse to Section 7 of the COFEPOSA Act, 1974,  or  why
steps were  not  taken  to  declare  the  Appellant  as  an  absconder  from
9.7.2007, till he approached the High Court in Writ  Petition  No.  3233  of
2010.



29.   In the third case,  which  is  S.L.P.(Crl.)  No.  1909  of  2011  (now
Appeal), filed by one Anil Kailash Jain, the detention order was  passed  on
13.12.2007, on the ground of duty evasion.  Mr. Marlapalle submitted that  a
joint proposal had  been  submitted  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 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.



30.   In W.P. (Crl.) No.  220  of  2011,  filed  by  Kamlesh  N.  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 Authority and served 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  he  applied
for  bail  and  the  retractions  were  made  thereafter.   Mr.   Marlapalle
submitted that the retractions, which were sent by post, were only  for  the
purposes of challenging the detention order, when it was passed.



31.   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
submitted that this is one of those cases in which the proposed detenue  had
approached the Settlement Commission under Section 127H of the Customs  Act,
1962 and a settlement had been arrived at and the Settlement Commission  had
granted immunity from prosecution under the Customs Act  to  the  Petitioner
and the co-accused.  It is on that basis that a representation was  made  on
11.11.2011 for revocation of the  detention  order  dated  23.12.2010.   Mr.
Marlapalle  submitted  that  it  is  not  known  as  to  whether  the   said
representation  was  decided  or  not.   No  submission  was  made  by   Mr.
Marlapalle on the issue as to whether the detention  order  was  sustainable
after the Settlement Commission had granted immunity from prosecution  under
the Customs Act, 1962.



32.   Writ Petition (Crl.) No. 35 of 2011 and  S.L.P.  (Crl.)  No.  2442  of
2012 (now Appeal), have been filed challenging the  detention  order  passed
under Section  3(1)  of  the  COFEPOSA  Act  on  12.3.2001.   Although,  the
petition has been filed by one Shri Suresh  D.  Hotwani,  the  name  of  the
proposed detenue is Nitesh Ashok Sadarangani.  The main ground of  challenge
is that 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 Criminal Writ Petition 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.



33.   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. 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  of  each  case  and,  in  any
event, the proposed detenue could not take advantage of  his  own  wrong  by
evading the detention order and then challenging the same on the  ground  of
delay.



34.   Mr. Marlapalle urged that in Hare Ram  Pandey  (supra),  there  was  a
delay of nine years, 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 Gandhi (supra), Naresh Kumar Goyal (supra) and  also  State
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.



35.   Mr. Marlapalle lastly submitted  that,  in  each  case,  there  was  a
likelihood of the proposed detenues being released on bail, which  was  also
one of the reasons which prompted the  Detaining  Authorities  from  passing
the detention orders impugned in these several proceedings.



36.   In addition to the above, Mr. Marlapalle drew  the  Courts'  attention
to Section 5A of the National Security Act, 1980,  hereinafter  referred  to
as "NSA Act, 1980",  which  provides  that  the  grounds  of  detention  are
severable on certain defined grounds so as not to  affect  the  validity  of
the detention order as a whole.  Reference was also made  to  Section  7  of
the Act which empowers the Central Government to pass appropriate orders  in
relation  to  absconding  persons,  which  are  in  pari  materia  with  the
provisions of Section 7(1)(b) of the COFEPOSA Act, 1974.



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



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



  (i) That, the detention orders passed in respect of the several  proposed
           detenues were challenged at the pre-detention stage, on  grounds
           other than those indicated in Alka Subhash Gadia's case (supra),
           and that the five exceptions carved out in Alka Subhash  Gadia's
           case were illustrative and not exhaustive.
  (ii)     Whether any live link could be said to exist between  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 indicated in the detention order?
            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 fact 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 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 passed?
  (vi)     Whether the provisions of Section 7 of the COFEPOSA  Act,  1974,
           and Section 7 of the National Security Act, 1980,  can  be  made
           the basis for making an order of preventive detention?



39.   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 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 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 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  beginning  of  his
submissions, we had indicated that law is  never  static,  but  dynamic  and
that the right to freedom being  one  of  the  most  precious  rights  of  a
citizen, the same could not be interfered with as a  matter  of  course  and
even if it is  in  the  public  interest,  such  powers  would  have  to  be
exercised with extra caution and not as an alternative to the ordinary  laws
of the land.



40.   With regard to the second, third and sixth  grounds  of  challenge,  I
had also dealt at length on whether a preventive detention order, which  was
not meant to be punitive, but preventive, could be executed  after  a  lapse
of several years during which period the live link  between  the  order  and
the objects sought to be achieved by executing the order, was  snapped.  
In
my view, since it was the intention of the  Sponsoring  Authorities  that  a
person having criminal propensities should be prevented  from  indulging  in
the same to the prejudice of the public at large and from also indulging  in
economic offences against the Revenue, it would have to be established  that
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 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-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.



41.   As far as the fourth ground is concerned, one has to bear in the  mind
that the provision of the Customs Act and  other  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 127B empowers any 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  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 the Customs Act, 1962 and also for the purposes  of  Section  196  of
the Indian Penal Code.



42.    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  angles.
 Once  such  immunity   from   criminal
prosecution is granted, the question of preventive detention  for  the  same
cause of action loses its relevance, unless the proposed detenue  under  the
provisions of the COFEPOSA Act, 1974, or any other ancillary provisions,  is
involved in fresh transgression of the law.



43.   At this stage, I may take notice of the provisions of Sections  6  and
7 of the COFEPOSA Act,  1974.  
Section  6  of  the  said  Act  provides  as
follows:
           "6. Detention order not to be invalid or inoperative on  certain
           grounds – No detention order shall  be  invalid  or  inoperative
           merely by reason –


           (a) That the person to  be  detained thereunder is  outside  the
           limits of the territorial jurisdiction of the Government or  the
           officer making the order of detention, or


           (b) That the place of detention of such person  is  outside  the
           said limits."






44.   Section 7, on the other hand, deals with matters  which  are  relevant
to the facts of this case, since when a detention order cannot  be  executed
against the proposed detenue, it may be presumed  that  he  was  absconding.
Section 7 deals with the powers 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:
           "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 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  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  of  Criminal  Procedure,  1973  (2  of
                 1974), 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
                 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, 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.


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




45.   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 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 complied with by the proposed detenue.



46.   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.



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



48.   In my view, the said provisions clearly enumerate  the  powers  vested
in the Authorities when a proposed detenue absconds. 
That, in  my  view,  is
the ordinary law of the land, and not preventive detention, which  is  meant
to prevent the commission of offences, and not to punish an  individual  for
violation  of  statutory  provisions.   
Accordingly,   in   my   view,   the
submissions made  on  behalf  of  the  Union  of  India  and  the  State  of
Maharashtra, cannot be accepted and absconsion cannot, therefore, be made  a
ground for making an order  of  preventive  detention.   
Neither  in  Dropti
Devi's  case  (supra)  nor  in  Amrit  Lal  Manchanda's  case   or   in   M. Ahamedkutty's case had the above-mentioned provisions been  brought  to  the notice of the learned Judges who heard the matters, but had no  occasion  to consider the same.



49.   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  that
the provision was not misused by the 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, 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.



50.   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  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 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-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  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, in my view, 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.



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.



52.  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 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 Act is given, the continuance of the order of  detention
would be completely illogical and  even  redundant.   
Accordingly,  in  such
cases, the orders of preventive detention are liable  to  be  quashed  along
with the Warrants of Arrest and Proclamation  and  Attachment  issued  under
Sections 82 and 83 of the Code of Criminal Procedure.



53.   In the light of the views expressed by me  hereinbefore,  the  matters
indicated hereinbelow are allowed and the  orders  of  detention  challenged
therein are quashed on the ground that the said orders had become stale  and
the live link between the orders of detention and the object  sought  to  be
achieved by the said orders, stood snapped.  
Some of  the  orders  had  been
made thirteen years ago and the very purpose of such  detention  orders  had
been rendered meaningless in the absence of any material that  the  proposed
detenues had continued to indulge in activities which form the basis of  the
preventive detention orders.  
The following matters include Appeals  arising
out of the Special Leave Petitions and Writ Petitions either  filed  by  the
detenues themselves or their agents:
      (i)   Writ Petition (Crl.) No. 137 of 2011, filed by Subhash  Popatlal
             Dave.
      (ii)  Writ Petition (Crl.) No. 35 of 2011, filed by Suresh D. Hotwani.
      (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.
      (v)   Criminal Appeal @ SLP (Crl.) No. 1909 of  2011,  filed  by  Anil
             Kailash Jain.
      (vi)   Criminal  Appeal  @SLP(Crl.)  No.  1938  of  2011,   filed   by
             Sureshkumar Ukchand Jain.
      (vii) Criminal Appeals @ SLP (Crl.) Nos. 2091-2092,  filed  by  Rajesh
             Verma.
54.   However, the Transferred Cases @ Transfer Petition (Crl.)  Nos.  38-39
of 2013, filed by Vijay Ram Bilas Gupta, Writ 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.



55.   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 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.  Criminal  Appeal  @ S.L.P.(Crl.)  No.
2442 of 2012 is, accordingly, allowed  and  the  order  of  the  High  Court
impugned therein is set aside.


                                                      ………………………………………………CJI.
                                     (ALTAMAS KABIR)



New Delhi
Dated:July 16, 2013.












                                                                  Reportable


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL ORIGINAL JURISDICTION


                  WRIT PETITION (CRL.) NO.137/2011 ETC.ETC.




    Subhash Popatlal Dave                            .. Petitioner


                                   Versus


    Union of  India & Anr.                          .. Respondents






                               J U D G M E N T






    GYAN SUDHA MISRA, J.




                 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.
    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-execution stage confined  to  the
    five exceptions carved out by this Court in the case of  Additional
    Secretary to the Govt. of India  And Ors. vs.  Alka  Subhash  Gadia
    And Anr.  1992 Supp (1) SCC 496  or whether such challenge could be
    maintained inter alia on other grounds.   This  Court  (Bench)  has
    already delivered a judgment  on this question  vide  judgment  and
    order  dated 10.07.2012 reported in (2012) 7 SCC 533 that the right
    of a proposed detenue to challenge  a  preventive  detention  order
    passed against him  may be challenged at the pre-execution stage on
    grounds other than  those set out in paragraph 30 of  the  judgment
    in Alka Subhash Gadia’s case   and it was held   therein  that  the
    order of preventive detention can be  challenged  beyond  the  five
    conditions  enumerated in  Alka Subhash Gadia’s case.    To make it
    explicitly clear it may be reiterated that this Court  has  already
    held  that the order  of preventive  detention  can  be  challenged
    beyond the five grounds which  have been enumerated in the case  of
    Alka Subhash Gadia’s case even at the pre-execution stage.
    3.           However,  the next important question that has cropped
    up in all these petitions/appeals is as  to  whether  the  proposed
    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  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.
    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  such 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  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  at
    the 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 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  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  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 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 SCC 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 order restraining the  appellants   from  enforcing   the
    order.  But, this Court overruled it and held that the judgment  of
    the High Court was clearly unsustainable  and hence was set  aside.
    It was further held therein  that the question as  to  whether   it
    would be  desirable  to take  the  respondents  (detenue)  back  to
    custody shall be taken by the Government   within  two  months  and
    appeal filed by the Union of India was allowed.
    9.           Similarly, in the case of Bhawarlal   Ganeshmalji  vs.
    State of Tamil Nadu And Anr. (1979) 1 SCC 465,  the  appellant  had
    evaded arrest and surrendered  3 years after making of the order of
    detention  but this Court had  held   that  the  order   was  still
    effective  if detenu himself  were to be blamed for delay.   It  is
    no doubt true that in this matter, the Court had further held  that
    the purpose of detention  under the COFEPOSA  is not  punitive  but
    preventive and there must be  a  ‘live and  proximate link’ so that
     if there  is a long and unexplained delay  between  the  order  of
    detention  and arrest of the detenue,  the order of  detention  may
    be struck down  unless the grounds  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.
    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  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 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
           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  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   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  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
    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  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.
    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  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
    detention which could not be gone into for want of  its  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  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  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-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, 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 relied upon by the  authorities  for
    passing  the order of detention so  as  to   contend  that  at  the
    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 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 was 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) 8 SCC 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 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
    each individual/proposed detenue will have to be  served  with  the
    order of detention which had been passed against them alongwith the
    grounds and the materials relied upon by the  authorities  to  pass
    the order of detention leaving it open to  them  to  challenge  the
    correctness of the order by way  of  a  representation  before  the
    appropriate Authority or Court as per procedure prescribed.  It  is
    no doubt true that the materials relied upon at the  relevant  time
    would be on the basis of which  the order of detention  was  passed
    so as to hold whether the materials were sufficient  and  justified
    or not but when the  correctness  of  the  order  of  detention  is
    challenged in a court of  law  at  the  pre-execution  stage,  then
    setting  aside the order of detention merely on the ground of  long
    lapse of time  might lead to grave consequences which would clearly
    clash with the object and purpose of the preventive detention laws.


    18.          Therefore,  I am of the view  that  since  this  Court
    has already held that the order of detention can 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  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  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  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 specially when the  orders
    of detention  have been allowed to be challenged even at  the  pre-
    execution  stage  on  any  ground.   It  is,   therefore,   legally
    appropriate to serve the order  of   detention   on  the   proposed
    detenues leaving it open to them to challenge the  same  after  the
    grounds are served on them so as to appreciate  whether  there  had
    been sufficient materials before  the  detaining  authorities    to
    pass  the orders of detention  which were existing at the  relevant
    time and approve or disapprove  the  same.   In  any  view,  events
    subsequent  to the passing of the order  of  detention  is  neither
    before us nor would 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 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
    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  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 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 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.  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.


                                                                 ……………………..J
                                                          (Gyan Sudha Misra)


    New Delhi
    July  16, 2013



                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL ORIGINAL JURISDICTION

                     WRIT PETITION(CRL) NO. 137 OF 2011

Subhash Popatlal Dave                   …… Petitioner

                                     Vs.

Union of India & Anr.                           …… Respondents

                                    WITH

                  W.P.(CRL) NOS. 35, 138, 220 & 249 OF 2011
                        AND W.P.(CRL) NO. 14 of 2012

                                    WITH

CRL.A. NO. 932    OF 2013 (@ SLP(CRL) NO. 1909 OF 2011)
CRL.A. NO. 931    OF 2013 (@ SLP(CRL) NO. 1938 OF 2011)
CRL.A. NO. 930    OF 2013 (@ SLP(CRL) NO. 2442 OF 2012)
                                     AND
                 CRL.A. NOS. 961-962                OF 2013
                     (@ SLP(CRL) NOS. 2091-2902 OF 2012)

                                    WITH

                  TRANSFERRED CASE (CRL) NOS.2-3   OF 2013
                (@ TRANSFER PETITION(CRL) NOS. 38-39 OF 2013)


                               J U D G M E N T

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 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  authority  to  defend
          existence of our society, and to reject as  false  claims  in  the
          name of security which would undermine our freedoms and  open  the
          way to oppression…..”


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

2.    In my opinion, it is a statement which every judge  of  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.


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 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.   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  State  to
execute  such  preventive  detention  orders  would   be  violative  of  the
fundamental rights under Articles 14, 19, 21  and  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  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) may not  be  heard  to  advance
such arguments in view of the fact that such delay as is complained of is  a
consequence of the fact that the proposed detenus evaded the process of  law
by absconding.

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


8.    Article 22 of the Constitution recognises the authority of  the  State
to preventively detain a person notwithstanding the fact that such a  person
is neither convicted for the commission of  any  offence  nor  sentenced  in
accordance with  law.   The  authority  of  the  State  to  resort  to  such
preventive detention is  more  stringently  regulated  by  the  dictates  of
Article 22.  The nature and scope of the authority to 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”  but  taken  “by  way  of
precaution  to  prevent   mischief   to   the   community”[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.  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.


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  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 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.  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 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  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  of  Criminal
                    Procedure, 1973 (2 of 1974), 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
                    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, 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.


                 2)  Notwithstanding  anything  contained  in  the  Code  of
                    Criminal Procedure, 1973  (2  of  1974),  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  be  attached
and perhaps even be confiscated in an appropriate 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.   Failure  to  comply  with  such
notified  direction  on  the  part  of  the  proposed  detenu  -  without  a
reasonable cause - is made an offence punishable  either  with  imprisonment
for a term extending upto one year or with fine or both.

19.   If a preventive detention order is to be quashed or  declared  illegal
merely on the ground that the order remained unexecuted for  a  long  period
without examining the reasons for such non-execution, I am afraid  that  the
legislative intention contained in provisions such as Section  7(b)  of  the
COFEPOSA Act would be rendered  wholly  nugatory.   Parliament  declared  by
such provision that an (recalcitrant) individual against whom  an  order  of
preventive detention is issued is under legal obligation  to  appear  before
the notified authority once a notification contemplated under  Section  7(b)
of COFEPOSA Act is issued.  We have already noticed that failure  to  appear
without a reasonable excuse would be an offence  and  render  the  defaulter
liable for a  punishment  of  imprisonment.   Holding  that  the  preventive
detention orders are themselves rendered illegal, on the basis of  the  live
nexus 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 7(b) of  the  COFEPOSA
Act.

20.   This question fell for consideration of this Court on  more  than  one
occasion.  In Bhawarlal Ganeshmalji Vs. State of Tamil Nadu &  Anr.,  (1979)
1 SCC 463, this Court speaking through Justice O. Chinnappa Reddy held –
             “…… 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.”

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 detention order must be  considered  to  have
lapsed or ceased to be effective in the 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 Vs. Union of  India
& Anr., (1990) 2 SCC 1.

22.   Once again in  Union of India & Ors.  Vs.  Arvind  Shergill  &   Anr.,
(2000) 7 SCC 601, this Court held that –
          “we do not think that it would be appropriate to state that 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”.



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

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

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.[3]


27.   The question 
whether the five circumstances specified in Alka  Subhash
Gadia case (supra) are exhaustive of the  grounds on which  a  pre-execution
scrutiny of the legality of preventive detention  order  can  be  undertaken
was considered by us earlier  in  the  instant  case.   We  held  that   the
grounds are not exhaustive.[4]  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  inability  to  agree
with the opinion delivered by  Hon’ble  the  Chief  Justice  of  India.    I
dismiss all the matters.


                                                               ……………………………J.
                                                          ( J. Chelameswar )
New Delhi;
July 16, 2013.


ITEM NO.1B               COURT NO.1             SECTION X
[FOR JUDGMENT]

            S U P R E M E   C O U R T   O F   I N D I A
                         RECORD OF PROCEEDINGS
              WRIT PETITION (CRL.) NO(s). 137 OF 2011


SUBHASH POPATLAL DAVE                       Petitioner(s)

                 VERSUS

UNION OF INDIA & ANR.                       Respondent(s)

WITH
W.P(CRL.) NO. 138 of 2011

W.P(CRL.) NO. 35 of 2011

Crl.A.No.932/2013 arising from SLP(Crl) NO. 1909 of 2011

Crl.A.No.931/2013 arising from SLP(Crl) NO. 1938 of 2011

W.P(CRL.) NO. 220 of 2011

W.P(CRL.) NO. 249 of 2011

W.P(CRL.) NO. 14 of 2012

Crl.A.No.930/2013 arising from SLP(Crl) NO. 2442 of 2012

Crl.A.Nos.961-962/2013 arising from SLP(Crl) NOs.2091-2092 of 2012

T.C.(Crl.)Nos.2-3/2013 arising from T.P.(CRL) NOs.38-39 of 2013


Date: 16/07/2013  These Petitions were called on for JUDGMENT today.



For Petitioner(s)
                     Mr. Ravindra Keshavrao Adsure, AOR

                     Mr. D. Mahesh Babu, AOR

                     Mr. Rakesh Dahiya, AOR

                     Mr. Nikhil Jain, AOR

For Respondent(s)      Mr. P.P. Malhotra, ASG.
                       Ms. Ranjana Narayan, Adv.
                       Mr. Chetan Chawla, Adv.
                    Mr. B. Krishna Prasad, AOR

                    Ms. Asha Gopalan Nair, AOR

                    Mr. Arvind Kumar Sharma, AOR

                       Mr. Gopal Balwant Sathe, AOR

                       Dr. Kailash chand, AOR


                 Hon'ble the Chief Justice, Hon'ble Mrs. Justice Gyan  Sudha
            Misra and Hon'ble Mr. Justice  J. Chelameswar  pronounced  their
            separate judgments.  Hon'ble the Chief  Justice  pronounced  His
            judgment, allowing the Writ Petitions, being 137, 35, 138,  249,
            all of 2011 and after granting leave in Special Leave Petitions,
            allowing  appeals,  being   Criminal  Appeals  @  Special  Leave
            Petitions (Crl.) Nos. 1909 of 2011, 1938 of 2011,  2091-2092  of
            2012 and 2442 of 2012 and disallowing at this stage, being  pre-
            mature  the  following  matters,  being,  Transferred  Cases   @
            T.P.(Crl.)Nos.38-39  of  2013,  W.P.(Crl.)No.220  of  2011   and
            W.P.(Crl.)No.14 of 2012.


                 Hon'ble Mrs. Justice Gyan  Sudha  Misra  and  Hon'ble  Mr.
           Justice  J. Chelameswar, while  regretting  inability  to  agree
           with the judgment  of  Hon'ble  the  Chief  Justice,  pronounced
           separate but concurring judgments, dismissing all  the  matters,
           the writ petitions, appeals and the transferred case.


        (Sheetal Dhingra)                   (Juginder Kaur)
           AR-cum-PS                Assistant Registrar
[Signed three Reportable Judgments are placed on the  file]




    -----------------------
[1]     (a)   Khudiram Das v. State of W.B., AIR  1975  SC  550  –  “……  The
  power of detention is clearly a preventive measure..  It does not partake
   in any manner of the nature of  punishment.   It  is  taken  by  way  of
  precaution to prevent mischief to the community.  Since every  preventive
  measure is based on the principle that  a person should be prevented from
  doing something which, if left free  and  unfettered,  it  is  reasonably
  probable he would do, it must necessarily proceed in all cases,  to  some
  extent, on suspicion or anticipation as distinct from proof. … This being
  the nature of the proceeding, it is impossible to  conceive  how  it  can
  possibly be regarded as capable of  objective  assessment.   The  matters
  which have to be considered by the detaining authority  are
whether  the
  person concerned, having regard to his past conduct judged in  the  light
  of the surrounding circumstances and other relevant  material,  would  be
  likely to act in a prejudicial manner  as  contemplated  in  any  of  sub
  clauses (i), (ii) and (iii) of clause (1) of sub-section (1)  of  Section
  3, and if so, whether it is necessary  to  detain  him  with  a  view  to
  preventing him from so acting.  
These  are  not  maters  susceptible  of
  objective determination and they could not be attended to  be  judged  by
  objective standards.  They are  essentially  matters  which  have  to  be
  administratively determined for  the  purpose  of  taking  administrative
  action.  Their determination is, therefore,  deliberately  and  advisedly
  left by the legislature to the subjective satisfaction of  the  detaining
  authority which  by  reason  of  its  special  position,  experience  and
  expertise  would  be  best  fitted  to  decide  them.   It  must  in  the
  circumstances be held that the subjective satisfaction of  the  detaining
  authority as regards these matters constitutes  the  foundation  for  the
  exercise of the power of detention and the Court  cannot  be  invited  to
  consider the propriety  or  sufficiency  of  the  grounds  on  which  the
  satisfaction of the detaining authority is based.  The Court  cannot,  on
  a review of the grounds, substitute its  own  opinion  for  that  of  the
  authority, for what is made condition precedent to the  exercise  of  the
  power of detention is not an objective determination of the necessity  of
  detention  for a specified purpose but the  subjective   opinion  of  the
  detaining authority, and  if  a  subjective  opinion  is  formed  by  the
  detaining authority as regards the necessity of detention for a specified
  purpose, the condition of exercise of the power  of  detention  would  be
  fulfilled.  This would clearly show that the power of detention is not  a
  quasi-judicial power.”

      1(b)   In Additional Secretary to the Government of India and Others
  Vs. Smt. Alka Subhash Gadia and Another  1992 Supp (1) SCC 496, para 27
  reads as -
      27.   The preventive detention  law by its very nature has always
  posed a challenge before the cours in a democratic society such as ours
  to reconcile the liberty of the individual with the allegedly threatened
  interests of the society and the security of the State particularly
  during times of peace.
It is as much a deprivation of liberty of an
  individual as the punitive detention. Worse still, unlike the latter, it
  is resorted to prevent the possible misconduct in future, though the
  prognosis  of the conduct is based on the past record of the individual.
  The prognosis further is the result of the subjective satisfaction of the
  detaining authority which is not justiciable.
The risk to the liberty of
  the individual under our detention law as it exists is all the more
  aggravated because the authority entrusted with the power to detain is
  not directly accountable to the legislature and the people.
[2]     “14. In Shafiq Ahmad v. District Magistrate,  Meerut  relied  on  by
appellant,
it has been clearly held that what amounts to unreasonable  delay
depends on facts and circumstances of each case.
Where reason for the  delay
was stated to be abscondence of the detenu, mere failure on the part of  the
authorities to take action under Section 7 of the National Security  Act  by
itself was not sufficient to vitiate the order in view of the fact that  the
police force remained extremely busy in tackling the serious law  and  order
problem.
However, it was not accepted as a proper explanation for the  delay
in arresting the detenu. In that case the alleged incidents  were  on  April
2/3/9, 1988. The detention order was  passed  on  April  15,  1988  and  the
detenu was arrested on October 2, 1988. The submission was  that  there  was
inordinate delay in arresting the petitioner pursuant to the order and  that
it indicated that the order was not based on a bona fide and genuine  belief
that the action or conduct of the petitioner were such that  the  same  were
prejudicial to the maintenance of public order. Sabyasachi Mukharji, J.,  as
my Lord the  Chief  Justice  then  was,  observed  that
whether  there  was
unreasonable delay or not would depend upon the facts and  circumstances  of
a particular situation and if in a situation the person  concerned  was  not
available and could not be served, then the mere fact that the action  under
Section 7 of the Act had not been taken, would not be a ground  for  holding
that the detention order was bad. Failure to take action even if  there  was
no scope for action under Section 7  of  the  COFEPOSA  Act,  would  not  by
itself be decisive or determinative of the question whether there was  undue
delay in serving the order of detention.”
[3]    ..Thirdly, and this is more important, 
it is not correct to say  that
  the courts have no power to entertain grievances  against  any  detention order prior to the execution.   
The courts have the necessary  power  and
  they have used it in proper cases as has been pointed out above, although
  such cases have been few  and  the  grounds  on  which  the  courts  have
  interfered with them at the  pre-execution  stage  are  necessarily  very
  limited in scope and number, viz.,  
where  the  courts  are  prima  facie
  satisfied 
(i) that the impugned order is not passed under the  act  under
  which it is purported to have been passed,
 (ii) that it is sought  to  be
  executed against a wrong person, 
(iii) that it  is  passed  for  a  wrong
  purpose, (
iv) that it is  passed  on  vague,  extraneous  and  irrelevant
  grounds or 
(v) that the authority which passed it had no authority to  do
  so….

[4]    (2012) 7 SCC 533

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