Holding

A preventive detention order may be set aside at the pre‑execution stage if it is clearly illegal, and the non‑placement of material retractions before the Detaining Authority vitiates the order; the five grounds in Alka Subhash Gadia are illustrative, not exhaustive.

Summary

The Supreme Court examined a writ petition under Article 32 challenging a preventive detention order issued against Deepak Bajaj under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The petition was filed before the order was executed, raising the issue of maintainability of pre‑execution challenges. The Court held that such petitions are maintainable when the order is clearly illegal and that the five grounds listed in Alka Subhash Gadia's case are illustrative, not exhaustive. It found that the detaining authority had not been shown the retractions of confessional statements of alleged witnesses, a material omission that vitiated the order. Consequently, the detention order was declared illegal and quashed. The judgment reaffirmed the primacy of Article 21 and the wide jurisdiction of the Supreme Court to issue writs of certiorari and mandamus in preventive detention matters.

Issues considered

Whether a writ petition challenging a preventive detention order at the pre‑execution stage is maintainable under Article 32 of the Constitution.
Whether the failure to place retractions of confessions before the Detaining Authority vitiates the detention order.
Whether the five grounds enumerated in Alka Subhash Gadia's case are exhaustive for setting aside a detention order.
Whether the detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, s.3(1) is illegal due to procedural defects.
Whether the Supreme Court can quash a preventive detention order before its execution.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1)

Subjects

preventive detentionpre‑execution reviewArticle 21Article 32detention orderretraction of confessionvitiated orderfundamental rightshabeas corpuscertiorarimandamus

Judgment

[2008] 15 S.C.R. 1062

A DEEPAK BAJAJ
II.
STATE OF MAHARASHTRA & ANR

(Writ Petition (Crl.) No. 77 of 2008)
B
NOVEMBE.R 12, 2008

[ALTAMAS KABIR AND MARKANDEY KATJU, JJ.]

. Preventive Detention:
c
Detention order - Challenge to, at pre-execution stage
- Maintainability of - Held: Court can set aside the detention
order at pre-execution stage if it is satisfied that the detention
order was clearly illegal - Five grounds in Alka Subhash
I
. I

D Gadia's case for quashing detention order at pre-execution
~
stage are illustrative and not exhaustive - On facts, there was
failure to place retraction of confession of alleged witnesses
and other materials before Detaining Authority -Thus,
detention order stands vitiated and quashed - Constitution of
E India, 1950 - Articles 21 .and 32 - Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974
-s. 3(1).

Detention order - Relevant materials - Non-placement
of, before Detaining Authority - Effect of - Held: Would vitiate ·r_,.
F the detention order.

Constitution of India, 1950:

Article 21 - Right of life and liberty - Held: Is a
fundamental right - It should not be lightly transgressed.
G
Articles 32 and 226 - Issuance of writs by Supreme Court
and High Court - Power of - Explained: >-

Precedent: Reliance on - Held: Judgment of courts is
H 1062
DEEPAK BAJAJ v. STATE OF MAHARASHTRA & ANR. 1063

-.,.
not a statute and hence cannot be construed as such - It is A
not to be read mechanically as. Euclid's theorem nor as if it
was a statute.

The question which arose for consideration in this
petition was whether the instant petition challenging the
B
detention order at pre-execution stage was maintainable;
and whether the failure to place retraction of confession
before the detaining Authority would vitiate the detention
order.
Allowing the writ petition, the Court c
HELD: 1.1 The five grounds mentioned in Smt. Alka
Subhash Gadia's case on which the court can set aside
the detention order at the pre execution stage are, (i) that
the detention order is not passed under the Act under
D
which it is purported to have been passed, (ii) that it is
sought to be executed against a wrong person, (iii) that .
it is passed for a wrong purpose, (iv) that it is passed on
vague, extraneous and irrelevant grounds or (v) that the
authority which passed it had no authority to do so. The
said grounds are only illustrative not exhaustive. [Para 5 E
and 6] [1072-E-F; 1073-A]
Additional Secretary to the Government of India and Ors.
... ~ vs. Smt. Atka Subhash Gadia and Anr., 1992 (Suppl.1) SCC
496, referred to. F
1.2. A judgment of a Court is not to be read
mechanically as a Euclid's theorem nor as if it was a
statute. A judgment is not a statute, and hence cannot be
construed as such. In Smt. Alka Subhash Gadia's case
this Court only wanted to lay down the principle that G
~
entertaining a petition against a preventive detention
order at a pre- execution stage should be an exception
and not the general rule. The said proposition is
concurred with. However, it would be an altogether
different thing to say that the five grounds for entertaining H
1064 SUPREME COURT REPORTS [2008] 15 S.C.R.

A such a petition at a pre execution stage mentioned in Smt.
Alka Subhash Gadia's case are exhaustive. They are
illustrative and not exhaustive. [Paras 7 and 16] [1073-B;
1076-D-E]
Additional Secretary to the Government of India and Ors.
B vs. Smt. Alka Subhash Gadia and Anr. 1992 (Suppl.1) SCC
496; Ambica Quarry Works vs. State of Gujarat and Ors.
(1987) 1 SCC 213; Bhavnagar University vs. Palittana Sugar. ~-
Mills Pvt. Ltd. (2003). 2 SCC 111; Bharat Petroleum
Corporation Ltd. and Anr. vs. N.R. Vairamani & another AIR
C 2004 SC 4778; Sarva Shramik Sanghatana (K. V.), Mumbai
vs. State of Maharashtra & Ors. AIR 2008 SC 946 and
Government of Karnataka and Ors. vs. Gowramma and Ors.
AIR 2008 SC 863, referred to.

0 Quinn vs. Leathern, 1901 AC 495; London Graving D()ck .
Co. Ltd. vs. Horton 1951 AC 737; Home Office vs. Dorset ·
Yacht Co. 1970·(2).All ER 294 and Herrington vs. Bfitish. ·
Railways Board 1972 (2) WLR 537, referred to. · · ·'
1.3. Every pe~son has a fundamental. right of liberty . .. .t
E · vide Article 21 of the Com;titution. Article 21; which ~gives ·
the right of life and liberty,·is the most fulidamentat·of an··
the Fundamental Rights in the Constitution. Though, no .·..·
.· doubt, restrictions can be placed on these rights in. the
. interest of public order, security ofthe State, etc~ but they : · r ....,
. F are not to be lightly transgressed. If a person is sent to
jail then even if he is subsequently released, his
reputation may be irreparably tarnished. [Paras 18 and
21] [1076-H; 1077-A, D]
Govt. of Andhra Pradesh vs. ·P. Laxmi Devi J. T. 2008 (2)
G · SC 639; Francis Coralie Mullin vs. Union Territory of Delhi
AIR 1981SC746; Francis Coralie Mullin.vs. WC. Khambra. >-
. '
and Ors. AIR 1980 SC 849; State of Maharashtra·and Ors
. vs. Public Concern for Governance Trust and Ors. 2007 (3)
SCC 587; Joginder Kumar vs. State of U.P. and Ors. AIR 1994
H SC 1349, referred to.
DEEPAK BAJAJ v. STATE OF MAHARASHTRA & ANR. 1065

....
Ghani vs. Jones (1970)1 Q.B. 693, referred to. A
1.4. If a person against whom a preventive detention
order has been passed comes to Court at the pre
execution stage and satisfies the Court that the detention
order is clearly illegal, there is no reason why the Court
8
should stay its hands and compel the petitioner to go to
jail even though he is bound to be released subsequently
~ ~ (since the detention order was illegal). [Para 24] [1078-C-
D]
2. It cannot be accepted that a writ of habeas corpus c
lies only when there is illegal detention, and in the instant
case since the petitioner has not yet been arrested, no
writ of habeas corpus can be issued. Firstly, Article 226
and Article 32 of the Constitution permit the High Court
·and the Supreme Court to not only issue the writs which D
~
we.re traditionally issued by British Courts but these
Articles give much wider powers to Supreme Court and
the High Court. This is because Article 32 and Article 226
state that the Supreme Court and High Court can issue
writs in the nature of habeas corpus, mandamus, E
certiorari, etc. and they can also issue orders and
directions apart from issuing writs. The words 'in the
nature or imply that the powers of Supreme Court or the
High Court are not subject to the traditional restrictions
- ~ on the powers of the British Courts· to issue writs. Thus
F
the powers of Supreme Court and the High Court are
much wider than those of the British Courts. Secondly,
1
what the petitioner really prays for is a writ in the nature
of certiorari to quash the impugned detention order and/
or a writ in the nature of mandamus for restraining the
respondents from arresting him. Hence, even if the
G
petitioner is not in detention a writ of certiorari and/or
-l
mandamus can issue. [Para 28] [1079-0-F; 1079-H; 1080-
A]
....
Dwarka Nath vs. Income-Tax Officer, Special Circle, O H
Additional Secretary to the Government of India and Ors.
E vs. Smt. Alka Subhash Gadia and Anr. 1992 (Suppl.1) SCC
496 and Rajinder Arora vs. Union of India and Ors. 2006 (4)
sec 796, referred to.
3.2. Mostof the retractions were made to the ORI, and
F he belongs to the same department as Sponsoring +----
t
Authority, who is the Additional Director, Revenue
Intelligence. Hence, it was the duty of ORI to have
communicated these retractions of the alleged witnesses
to the Sponsoring Authority, as well as the Detaining
t
Authority. There is no dispute that these retractions were
G indeed made by persons who were earlier said to have
made confessions. These confessions were taken into
consideration by the Detaining Authority when he passed
the detention order. Had the retractions of the persons
who made these confessions also been placed before
H Detaining Authority it is possible that the Detaining
-
1. DEEPAK BAJAJ v. STATE OF MAHARASHTRA & ANR. 1067

.,..
Authority may not have passed the impugned detention A
order. Hence, the retractions of confessions should
-1,. certainly have been placed before the Detaining
Authority, and failure to place them before him, vitiates the
detention order. (Para 39] (1083-E-G]
B
3.3. Even if the retractions in the present case were
'
---,/
not placed before the Detaining Authority that will not be
A of any avail to the respondents since it has been held
that it was the duty of the authorities before whom the
retractions were made to have forwarded them to the
Detaining Authority and the Sponsoring Authority. [Para c
41] [1084-H; 1085-A]

3.4. Failure to place the retractions and other
materials referred iri the petition before the Detaining
' ---f
Authority would certainly vitiate the impugned detention D
order. The relevant material was not placed before the
Detaining Authority when it passed the detention order,
and thus, the detention order is vitiated. The impugned
detention order deserves to be set aside and are
quashed. [Paras 46, 50 and 51] [1086-B; 1087-B, C] E
" Ashadevi vs. K. Shivraj and Anr. 1979 (1) SCC 222;
Adishwar Jain vs. Union of India andAnr. 2006(11) SCC 339;
V.C. Mohan vs. Union of India AIR2002 SC 1205; Additional
~
Secretary to the Government of India and Ors. vs. Smt. Alka
Subhash Gadia and Anr. 1992 (Suppl.1) SCC 496; Rajinder F
Arora vs. Union of India & Ors. 2006 (4) SCC 796; P.
Saravanan vs. State of Tamil Nadu and Ors. 2001(10) SCC
212; Ahamed Nassar vs. State of Tamil Nadu and Ors.
1999(8) SCC 473; Sita Ram Somani vs.State of Rajasthan
AIR 1986 SC 1072; Union of India vs. Manoharlal Narang -G
1987 (2) SCC 241; A. Sowkath Ali vs. Union of India and Ors .
../...
2000(7) sec 148, relied on.

State of Maharashtra vs. Bhaurao Punjabrao Gawande
AIR 2008 SC 1705; Alpesh Navinchandra Shah vs. State of H
•

1068 SUPREME COURT REPORTS [2008] 15 S.C.R.
~
_.'
\

A Maharashtra and Ors. .2007 (2) SCC 777; Maqsood Yusuf ;;(

Merchant vs. Union of India and another Criminal Appeal No.
1337 of 2008 decided by S.C. on 22.8.2008; T.A. Abdul
.'
Rehman vs. State of Kera/a and Ors. AIR 1990 SC 225,
referred to.
. }
B
Case Law Reference: I.

AIR 2008. SC 1705 Referred to. Para 3, 49
!..
·~
1992. (Suppl.1) sec 496 Referred to. Para 3, 5, .
6,24, 27
c
2006 (4) sec 796 Referred to. Para 3, 27
t
2001 (2) sec 111 Referred to. Para 3, 48
1901 AC 495 Referred to. Para 8
D
(1987) 1 sec 213 Referred to. Para 9 -r· r
· (2003) 2 sec 111 Referred to. Para 10
AIR 2004 SC 4778 Referred to. Para 11 .__

E 1951 AC 737 Referred to. Para 12 "
I

1970 (2) ALL ER 294 Referred to. Para 13 "
,.'
1972 (2) WLR 537 Referred to. Para 14
~
F AIR 2008 SC 946 Referred to. Para 15 .
AIR 2008 SC 863 Referred to. Para,15

1992 (Suppl.1) sec 496 Relied on. Para 16, 43

· (1970)1 Q.B. 693 Referred to. Para 19 .
~~-
G
J.T. 2008 (2) SC 639 Referred to. Para 20 ·r
.
2001 (3) sec .587 Referred to. Para 21 )... '

AIR 1994 SC 1349 Referred to. Para 22
.. H
,,
-~

a 1069
DEEPAK BAJAJ v. STATE OF MAHARASHTRA & ANR

AIR 1981 SC 746 Referred to. Para 25 A
"'
AIR 1980 SC 849 Referred to. Para 26
AIR 1966 SC 81 Relied on. Para 28
AIR 1989 SC 1607 Relied on. Para 28 B
(1923) 2 KB 361 Referred to. Para 30

~ (1627) 3 ST TR. 1 Referred to. Para 31
1979 (1) sec 222 Relied on. Para 40
c
2006 (11) sec 339 Relied on. Para 42
AIR 2002 SC 1205 Relied on. Para 42
2006 (4) sec 796 Relied on. Para 43
2001(10) sec 212 Relied on. Para 43 D
. ---1

1999(8) sec 473 Relied on. Para 43
AIR 1986 SC 1072 Relied on. Para 43
1987 (2) sec 241 Relied on. Para 44 E
· 2000 (7) sec 148 Relied on. Para 45
AIR 1990 SC 225 Referred to. Para 49
'1
4. ORIGINAL CRIMINAL JURISDICTLON : Writ Petition (Crl.)
F
No. 77 of 2008.

(Under Article 32 of the Constitution of India)

Soli Sorabjee, Sr. Adv., Vikram Chaudhary, Nikhil Jain,
Ajay Pal and Anand Mishra for the Appellant. G
Shekhar Nafade, Sr. Avd., Ravindra Keshavrao Adsure,
J..., Satish Aggarwal and Pooja Bhaskar, Ad vs., for the
Respondents.
..
H
,_
t;;;
1070 SUPREME COURT REPORTS [2008] 15 S.C.R.
)
-"---

-'('
A The Judgment of the Court was delivered by

MARKANDEY KAT JU, J. 1. This writ petition under
Article 32 of the Constitution of India has been filed to challenge
the detention order dated 22.05.2008 passed against the
petitioner, Deepak Gopaldas Bajaj, resident of Mumbai under
B
Secti9n 3(1) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 (in short 'the Act'),
copy of which is_Anr'!exure P-1 to this petition. _ _).__

2. Heard Shri Soli Sorabjee, learned senior counsel for the
c petitioner and Shri Shekhar Nafade and Shri Ravindra
Keshavrao Adsure, learned counsels for the respondents and ~=
perused the record.

3. An objection has been taken by the learned counsels
D for the respondents that this petition should not be entertained
-)'---- --+
because the petition has been filed at a pre-execution stage
i.e. before the petitioner has surrendered or was arrested.
Learned counsel for the respondents has relied on the
decisions of this Court in State of Maharashtra vs. Bhaurao
Punjabrao Gawande AIR 2008 SC 1705, which has followed
E
the decision of this Court_ in Additional Secretary to the
Government of India & Ors. vs. Smt. Alka Subhash Gadia &
Anr. 1992 (Suppl.1) SCC 496, and the other decisions of this
w Court in Rajinder Arora vs. Union of India & Ors. 2006 (4) SCC
~
796, Alpesh Navinchandra Shah vs. State of Maharashtra &
F Ors. 2007 (2) SCC 777, etc.

4. We have carefully perused the aforesaid decisions and
we are of the opinion that the legal position regarding the power
of this Court or the High Court to set aside a preventive
G detention order at the pre execution stage needs to be further
explained.
)..._
5. Since the aforesaid decisions have basically followed
the decision of this Court in Additional Secretary to the
Government of India & Ors. vs. Smt. Alka Subhash Gadia &
H
DEEPAK BAJAJ v. STATE OF MAHARASHTRA & ANR. 1071
[MARKANDEY KATJU, J.]

Anr. (supra), it would be useful to refer to the aforesaid decision. A
In paragraph 30 of the aforesaid decision in Smt. Alka
Subhash Gadia's case (supra) this Court observed :

"30. As regards his last contention, viz., that to deny a right
to the proposed detenu to challenge the order of detention
B
and the grounds on which it is made before he is taken in
custody is to deny him the remedy of judicial review of the
impugned order which right is a part of the basic structure
of the Constitution, we find that this argument is also not
well merited based as it is on absolute assumptions.
Firstly, as pointed out by the authorities discussed above, C
there is a difference between the existence of power and
its exercise. Neither the Constitution including the
provisions of Article 22 thereof nor the Act in question
places any restriction on the powers of the High Court and
this Court to review judicially the order of detention. The D
powers under Articles 226 and 32 are wide, and are
untrammeled by any external restrictions, and can reach
any executive order resulting in civil or criminal
consequences. However, the courts have over the years
evolved certain self-restraints for exerci~ing these powers. E
They have done so in the interests of the administration
of justice and for better and more efficient and informed
exercise of the said powers. These self-imposed restraints
are not confined to the review of the orders passed under
detention law only. They extend to the orders passed and F
decisions made under all laws. It is in pursuance of this
self-evolved judicial policy and in conformity with the self-
imposed internal restrictions that the courts insist that the
aggrieved person first allow the due operation and
implementation of the concerned law and exhaust the G
remedies provided by it before approaching the High
Court and this Court to invoke their discretionary
extraordinary and equitable jurisdiction under Articles 226
and 32 respectively. That jurisdiction by its very nature is
to be used sparingly and in circumstances where no other H
f-

1072 SUPREME COURT REPORTS [2008] 15 S.C.R.

A efficacious remedy is available. We have while discussing
the relevant authorities earlier dealt in detail with the
circumstances under which the seextraordinary powers are
used and are declined to be used by the courts. To accept
Shri Jain's present contention would mean that the courts
B should disregard all these time-honoured and well-tested
judicial self-restraints and norms and exercise their said
powers, in every case before the detention order is
executed. Secondly, as has been rightly pointed out by
Shri Sibal for the appellants, as far as detention orders
c ·are concerned if in every case a detenu is permitted to
challenge and seek the stay of the operation of the order
before itis executed, the very purpose of the order and of
the law under which it is made will be frustrated since such
orders are in operation only for a limited period. Thirdly,
and this is more important, it is not correct to say that the
D
courts have no power to entertain grievances against any
detention order prior to its execution. The courts h~ve 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
E 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
F e.xecuted against a wrong person, (iii) that it is passed
for a wrong purpose, (iv) that it is passed on vague,
extraneous and irrelevant grounds or (v) that the. authority
which passed it had no authority to do so. The refusal by
the courts to use their extraordinary powers of judicial
G review to interfere with the detention orders prior to their
execution on any other ground does not amount to the
abandonment of the said power or to their denial to the
proposed detenu, but prevents their abuse and the
perversion of the law in question."
H
DEEPAK BAJAJ v. STATE OF MAHARASHTRA & ANR. 1073
[MARKANDEY KATJU, J.]

6. We have carefully perused the above observations in A
Smt. Atka Subhas/1 Gadia's case (supra) and we are of the
opinion that the five grounds mentioned therein on which the
Court can set aside the detention order at the pre execution
stage are only illustrative not exhaustive.
B
7. It is well settled that a judgment of a Court is not to be
read mechanically as a Euclid's theorerh nor as if it was a
statute.

8. On the subject of precedents Lord Halsbury, LC., said
in Quinn vs. Leathern, 1901 AC 495 : C '

"Now before discussing the case of Allen Vs. Flood
(1898) AC 1 and what was decided therein, there are two
observations of a general character which I wish to make,
and one is to repeat what I have very often said before, o
that every judgment must be read as applicable to the
particular facts proved or assumed to be proved, since
the generality of the expressions which may be found
there are not intended to be expositions of the whole law,
but are governed and qu'alified by the particular facts of E
the case in which such expressions are fo be found. The
other is that a case is only an authority for what it actually
decides. I entirely deny that it can be quoted for a
proposition that may seem to follow logically from it. Such
a mode of reasoning assumes that the law is necessarily F
a logical Code, whereas every lawyer must acknowledge
that the law is not always logical at all."

We entirely agree with the above observations.

9. In Ambica Quarry Works vs. State of Gujarat & others G
(1987) 1 SCC 213 (vide paragraph 18) this Court observed :

"The ratio of any decision must be understood in the
background of the facts of that case. It has been said a
long time ago that a case is only an authority for what it
H
1074 SUPREME COURT REPORTS [2008] 15 S.C.R.

A actually decides and not what logically follows from it".

10. In Bhavnagar University vs. Palittana Sugar Mills Pvt.
.Ltd: (2003) 2 SCC 111 (vide paragraph 59), this Court observed

B "It is well settled that a little difference in facts or
additional facts may make a lot of difference in the
precedential value of a decision".

11. As held in Bharat Petroleum Corporation Ltd. &
c another vs. N.R. Vairamanl & another (AIR 2004 SC 4778),
a decisioncannot be relied on without disclosing the factual
situation. In the same judgment this Court also observed:

"Courts should not place .reliance on decisions without
discussing as to how-the factual situation fits in with the
D
fact situation of the decision on ~hich reliance is placed.
Observations of Courts are neither to be read as Euclid's
theorems nor as provisions of the statute and that too
taken out of the context. These observations must be
read in the context in which they appear to have been
E stated. Judgments of Courts are not to be construed as
statutes. To interpret words, phrases and provisions of a
statute, it may become necessary for judges to embark
into lengthy discussions but the discussion is meant to
explain and not to define. Judges interpret statutes, they
F do not interpret judgments. They interpret words of
statutes; their words are not to be interpreted as statutes.

(emphasis supplied)

12. In London Graving Dock Co. Ltd. vs. Horton (1951 AC
G 737 at page 761 ), Lord Mac Dermot observed :

"The matter cannot, of course, be settled merely by
treating the ipsissima verba of Willes, J. as though they
were part of an Act of Parliament and applying the rules
H
DEEPAK BAJAJ v. STATE OF MAHARASHTRA & ANR. 1075
[MARKANDEY KATJU, J.]
~
of interpretation appropriate thereto. This is not to detract A
from the great weight to be given to the language actually
used by that most distinguished judge".

13. In Home Office vs. Dorset Yacht Co. (1970 (2) All ER
294) Lord Reid Said, "Lord Atkin's speech ... is not to be
B
treated as if it was a statute definition; it will require qualification
in new circumstances, Megarry, J. in (1971) 1 WLR 1062
observed:

"One must not, of course, construe even a reserved
judgment of Russell L.J. as if it were an Act of Parliament". c
14. And in Herrington vs. British Railways Board (1972
(2) WLR 537) Lord Morris said :

''There is always peril in treating the words of a
D
-~
speech or judgment as though they are words in a
legislative enactment, and it is to be remembered that
judicial utterances are made in the setting of the. facts of
a particular case.

Circumstantial flexibility, one additional or different E
fact may make a world of difference between conclusions
in two cases. Disposal of cases by blindly placing reliance
on a decision is not proper. The following words of Lord
Denning in the matter of applying precedents have
become locus classicus : F
Each case depends on its own facts and a close
similarity between one case and another is not enough
because even a single significant detail may alter the
entire aspect. In deciding such cases, one should avoid G
the temptation to decide cases (as said by Cardozo, J.)
by matching the colour of another. To decide, therefore, on
which side of the line a case falls, the broad resemblance
to another case is not at all decisive.
H
1076 SUPREME COURT REPORTS [2008] 15 S.C.R.

-'(
A Precedent should be followed only so far as it marks
the path of justice, but you must cut the dead wood and
trim off the side branches else you will find yourself lost
in thickets and branches. My plea is to keep the path of
justice clear of obstructions which could impede it."
B
(emphasis supplied)

15. The same view was taken by this Court in Sarva ,l.
Shramik Sanghatana (K. V.), Mumbai vs. State of Maharashtra
& Ors. AIR 2008 SC 946 and in Government of Kamataka &
c Ors. vs. Gowramma & Ors. AIR 2008 SC 863.

16. Shri Shekhar Nafade learned senior counsel for the
State of Maharashtra submitted that the five conditions
mentioned in Smt. Atka Subhash Gadia's case (supra) were
D exhaustive and not illustrative. We cannot agree. As already ~-

stated above, a judgment is not a statute, and hence cannot
be construed as such. In Smt. Atka Subhash Gadia's case
(supra) this Court only wanted to lay down the principle that
entertaining a petition against a preventive detention order at
E a pre- execution stage should be an exception and not the
general rule. We entirely agree with that proposition. However,
it would be an altogether different thing to say that the five
grounds for entertaining such a petition at a pre execution stage
mentioned in Smt. Atka Subhash Gadia's case (supra) are
exhaustive. In our opinion they are illustrative and not exhaustive.
F
17. If a person against whom a prevention detention order
has been passed can show to the Court that the said detention
order is clearly illegal why should he be compelled to go to
jail? To tell such a person that although such a detention order
G is illegal he must yet go to jail though he will be released later
is a meaningless and futile exercise.

18. It must be remembered that every person has a
fundamental right of liberty vide Article 21 of the Constitution.
H
DEEPAK BAJAJ v. STATE OF MAHARASHTRA & ANR. 1077
[MARKANDEY KATJU, J.]
)---

Article 21, which gives the right of life and liberty, is the most A
fundamental of all the Fundamental Rights in the Constitution.
Though, no doubt, restrictions can be placed on these rights in
the interest of public order, security of the State, etc. but they
are not to be lightly transgressed.
B
19. In Ghani vs. Jones (1970)1 Q.B. 693 (709) Lord
Denning observed :

"A man's liberty of movement is regarded so highly by the
law of England that it is not to be hindered or prevented
except on the surest ground" c
20. The above observation has been quoted with approval
by this Court in Govt. of Andhra Pradesh vs. P. Laxmi Devi
J. T. 2008 (2) SC 639 (vide para 90).
----' D
21. If a person is sent to jail then even if he is subsequently
..,..., \

released, his reputation may be irreparably tamished. As
observed by this Court in State of Maharashtra & Ors. vs.
Public Concern for Governance Trust & Ors. 2007 (3) SCC
587, the reputation of a person is a facet of his right to life under
E
Article 21 of the Constitution (vide paragraphs 39 and 40 of
the said decision).

4,
22. As observed by the three Judge bench of this Court in
Joginder Kumar vs. State of U.P. & Ors. AIR 1994 SC 1349
F
(vide para 24) :

"........... The existence of the power to arrest is one thing.
The justification for the ,exercise of it is quite another. The
Police Officer must be able to justify the arrest apart from
G
his power to do so. Arrest and detention in police lock-
up of a person can cause incalculable harm to the
reputation and self-esteem of a person."

(emphasis supplied)
H
1078 SUPREME COURT REPORTS [2008] 15 S.C.R.

~
A 23. In the Geeta Lord Krishna said to Arjun :

"~ =tt1$1Rt4<011c;RIR"t4a,,
(Geeta : Chapter 2 Shloka 34)

B which means -

"For a self respecting man, death is preferable to
).
dishonour"

24. If a person against whom a preventive detention order
c has been passed comes to Court at the pre execution stage
and satisfies the Court that the detention order is clearly illegal,
there is no reason why the Court should stay its hands and
compel the petitioner to go to jail ev~n though he is bound to
be released subsequently (since the detention order was
D illegal). As already mentioned above, the liberty of a person is
a precious fundamental right under Article 21 of the Constitution -------
and should not be lightly transgresse·~. Hence in our opinion .
Smt. Alka Subhash Gadia's case (supra) cannot be construed
to mean that the five grounds mentioned therein for quashing
E the detention order at the pre execution stage are exhaustive.

25. In Francis Coralie Mullin vs. Union territory of Delhi
AIR 1981 SC 746 this Court observed (vide para 3):
)-
" .... the power of preventive detention is a frightful and
F
awesome power with drastic consequences affecting
per~onal liberty, which is the most cherished and prized
poss~ssion of man in a civilized society. It is a power to
be exercised with the greatest care and caution and the
courts have to be ever vigilant to see that this power is not
G
abused or misused."

26. In Francis Coralie Mullin vs. W. C. Khambra and
others AIR 1980 SC 849 this Court observed (vide para 5) :
~

H "No freedom is higher than personal freedom and no duty
-
DEEPAK BAJAJ v. STATE OF MAHARASHTRA '-Bi ANR. 1079
[MARKANDEY KATJU, J.]

higher than to maintain it unimpaired" A
27. Apart from the above, in our opinion non-placement of
the relevant materials before the Detaining Authority vitiates the
detention order, and grounds (iii) & (iv) of the decision of this
· Court in Alka Subhash Gadia's case (supra) are attracted in B
such a situation as held in Rajinder Arora vs. Union of India
(supra) (vide para 25 of the said decision). Hence, even if we
.treat the five exceptions mentioned in Alka Subhash Gadia's
case (supra) as exhaustive, the present case is covered by the
3rd and 4th exceptions of those five exceptions, as held in C
Rajinder Arora's case (supra).

28. Learned counsel for the respondent submitted that a
writ of habeas corpus lies only when there is illegal detention,
and in the present case since the petitioner has not yet been
arrested, no writ of habeas corpus can be issued. We regret D
we cannot agree, and that for two reasons. Firstly, Article 226
and Article 32 of the Constitution permit the High Court and the
Supreme Court to not only issue the writs which were
traditionally issued by British Courts but these Articles give
much wider powers to this Court and the High Court. This is E
because Article 32 and Article 226 state that the Supreme
Court and High Court can issue writs in the nature--of habeas
corpus, mandamus, certiorari, etc. and they can, also issue
orders and directions apart from issuing writs. The words 'in
the nature or imply that the powers of this Court or the High F
Court are not subject to the traditional restrictions on the powers
of the British Courts to issue writs. Thus the powers of this
Court and the High Court are much wider than those of the
British Courts vide Dwarka Nath vs. Income-tax Officer,
Special Circle, D Ward, Kanpur & Anr. AIR 1966 SC 81 (vide G
para 4), Shri Anadi Mukta Sadguru Shree Muktajee
Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust &
Ors. vs. V.R. Rudani & Ors. AIR 1989 SC 1607 (vide para 16
to 18), etc. Secondly, what the petitioner really prays for is a
H
1080 SUPREME COURT REPORTS [2008] 15 S.C.R.

A writ in the nature of certiorari to quash the impugned detention ~
order and/or a writ in the nature of mandamus for restraining
the respondents from arresting him. Hence even if the petitioner
is not in detention a writ of certiorari and/or mandamus can
issue.
B
29. The celebrated writ of habeas corpus has been
described as ·a great constitutional privilege of the citizen' or
'the first security of civil liberty'. The writ provides a prompt and
effective remedy against illegal detention and its purpose is to
C safeguard the liberty of the citizen which is a precious right not
to be lightly transgressed by anyone. The imperative necessity
to protect those precious rights is a lesson taught by all history
and all human experience. Our founding fathers have lived
through bitter years of the freedom struggle and seen an alien
government trample upon the human rights of our citizens. It is
D for this reason that they introduced Article 21 in the Constitution
and provided for the writs of habeas corpus, etc.

30. In R vs. Secretary of State for Home Affairs; ex parte
O'Brien (1923) 2 KB 361 : 1923 AC 603 : 92 LJKB 797,
E Scrutton, LJ observed:

"The law in the country has been very zealous of any
infringement of personal liberty. This case is not to be
exercised less vigilantly, because the subject whose liberty
F is in question may not be particularly meritorious. It is
indeed oneJest of belief in principles if you apply them to
cases with which you have no sympathy at all. You really
believe in freedom of speech if you are willing to allow it
to men whose opinion seem to you wrong and even
dangerous; and the subject is entitled only to be deprived
G
of his liberty by due process of law, although that due
process if taken will probably send him to prison. A man
undoubtedly guilty of murder must yet be released if due
forms of law have not been followed in his conviction. It is
quite possible, even probable, that the subject in this
H
DEEPAK BAJAJ v. STATE OF MAHARASHTRA & ANR. 1081
[MARKANDEY KATJU, J.]

case is guilty of high treason; he is still entitled only to A
be deprived of his liberty by due process of law.

(emphasis supplied)

31. As early as in 1627, the following memorable
8
observations were made by Hyde, C.J. in Darnel, Re, (1627)
3 St Tr. 1:

"Whether the commitment be by the King or others,
this Court is a place where the King doth sit in person, and
we have power to examine it, and if it appears that any C
man hath injury or wrong by his imprisonment, we have
power to deliver and discharge him, if otherwise, he is to
be remanded by us to prison."

32. In Halsbury's Laws of England, (4th Edn., Vol.11, para 0
1454,p.769), it is stated:

"In any matter involving the liberty of the subject the
action of the Crown or its ministers or officials is subject
.to the supervision and control of the judges on habeas
corpus. The judges owe a duty to safeguard the liberty of E
the subject not only to the subjects of the Crown, but also
to all persons within the realm who are under the
protection of the Crown and entitled to resort to the courts
to secure any rights which they may have, and this whether
they are alien friends or alien enemies. It is this fact which F
makes the prerogative writ of the highest constitutional
importance, it being a remedy available to the lowliest
subject against the most powerful. The writ has frequently
been used to test the validity of acts of the executive and,
in particular, to test the legality of detention under G
emergency legislation. No peer or lord of Parliament has
privilege of peerage or Parliamen~ agai-nst being
compelled to render obedience to a writ of habeas corpus
directed to him."
H
1082 SUPREME COURT REPORTS [2008] 15 S.C.R.

A 33. Coming now to the merits of the case. A perusal of
the grounds of detention which have been annexed as Annexure .._
P-2 to this petition shows that, the basic allegations against the I
petitioner are that he imported 29 consignments of goods duty
free which were meant to be used as raw material for
B manufacture of goods which should have been exported, but
instead, he sold them in the local market. It is also alleged that
he obtained duty free replenishment certificate (DFR) and
misused the same. Various other allegations have also been
made in the grounds of detention which runs into as many as
c 76 pages. I
l
.,.
34. Several submissions have been made by Shri Soli
Sorabjee, learned counsel for the petitioner, but in our opinion
it is not necessary to go into all of them since we are inclined
D to allow this petition on one of the.se grounds namely, that the )
relevant material was not placed before the Detaining Authority )---<-.
'
when he passed the detention order.

35. These relevant materials have been stated in the writ
petition in ground 'C' entitled 'Non-placement of relevant
E material documents by Sponsoring Authority leading to
consequent non..: consideration thereof by the Detaining
Authority'.

36. A large number of documents have been referred
F t~erein, but we agree with Mr. Shekhar Nafade, learned counsel
for the respondent that it is not necessary for the Detaining
Authority to consider or refer to the materials which were
irrelevant to the activities mentioned in Section 3( 1) of the Act.
However, we agree with Shri Soli Sorabjee that some of the
G materials were relevant and should have been placed before
the Detaining Authority and considered by him, but they were
neither placed before the Detaining Authority nor were they
considered.

37. The most important of these documents which were
H
DEEPAK BAJAJ v. STATE OF MAHARASHTRA & ANR 1083
[MARKANDEY KATJU, J.]

not placed before the Detaining Authority were the retractions A
given by Kuresh Rajkotwala to the ORI dated 4.12.2006, Kuresh
Rajootwala's affidavit filed before the learned Addi. Chief
Metropolitan Magistrate, Esplanade, Mumbai, Bharat
Chavhan's retraction to ORI dated 9.5.2008, Bipin Thaker's
retraction to ORI dated 19.1.2008, Sharad Bhoite's retraction B
dated 24.4.2007 before the Addi. Chief Metropolitan
Magistrate, Esplanade Mumbai and its affidavit filed before the
same authority etc.

38. Shri Nafade, learned counsel submitted that these
retractions were made before the ORI and the Additional Chief C
Metropolitan Magistrate, and not before the Sponsoring
Authority who was the Additional Director of Revenue
Intelligence. Shri Nafade submitted that the Sponsoring
·Authority was not aware of these retractions and hence he could
0
not have placed them before the Detaining Authority. We find
no merit in this submission.

· 39. Most of the retractions were made to the ORI, and he
belongs to the same department as the Sponsoring Authority,
who is the Additional Director, Revenue Intelligence. Hence, it E
was the duty of the ORI to have communicated these retractions
of the alleged witnesses to the Sponsoring Authority, as well
as the Detaining Authority. There is no dispute that these
retractions were indeed made by personswhowereearlier said
to have made confessions. These confess·ions were taken into F
consideration by the Detaining Authority when he passed the
detention order. Had the retractions of the persons who made
these confessions also been placed before the Detaining
Authority it is possible that the Detaining Authority may not have
passed the impugned detention order. Hence, in our opinion, G
the retractions of the confessions should certainly have been
placed before the Detaining Authority, and failure to place them
before him, in our opinion, vitiates the detention order.

40. It has been repeatedly held by this Court that if a H
.1084 SUPREME COURT REPORTS [2008] 15 S.C.R.

A confession is considered by the Detaining Authority while
passing the detention order the retraction of the confession
must also be placed before him and considered by him,
otherwise the detention order is vitiated. Thus in Ashadevi vs.
K. Shivraj & another 1979 (1) SCC 222 this Court observed
B (vide para 7) :

"Further, in passing the detention order the detaining
authority obviously based its decision on the detehu's
).
confessional statements of December 13 and 14, 1977
and, therefore, it was obligatory upon the Customs Officers
c to report the retraction of those statements· by the detenu
on December 22, 1977 to the detaining authority, for, it
cannot be disputed that the fact of retraction wouh;:I have
its own impact one way or the other on ttie detaining
authority before making up its mind whether or not to issue
D
the impugned order of detention. Questions whether the
confessional statements recorded on December 13 and ~-j

14, 1977 were voluntary statements or were statements
which were obtained from the detenu under duress or
,,__
,r
whether the subsequent retraction of those statements by
E ~
the detenu on December 22, 1977 was in the nature of an
after-thought, were primarily for the detaining authority to ~
consider before deciding to issue the impugned detention
order but since admittedly the aforesaid vital facts which
wo':lld have influenced the mind of the detaining authority )-
F one way or the other were neither placed before nor
considered by the detaining authority it must be held that
there was non-application of mind to the most material and
vital facts vitiating the requisite satisfaction of the detaining
authority thereby rendering the impugned detention order
G invalid and illegal".

41. It may be noted that in the above decision, this Court
,..l..
has held that it was the duty of the Customs Officer to have
reported the retraction of the statements to the Detaining
1'
H Authority. Hence, even if the retractions in the present case

~--
DEEPAK BAJAJ v. STATE OF MAHARASHTRA & ANR. 1085
[MARKANDEY KATJU, J.]

were· not placed before the Detaining Authority that will not be A
of any avail to the respondents since it has been held that it
was the duty of the authorities before whom the retractions were
made to have forwarded them to the Detaining Authority and
the Sponsoring Authority. We entirely agree with the above view.
B
42. In Adishwar Jain vs. Union of India and another
2006(11) SCC 339 this Court observed that where the relevant
documents have not been placed before the Detaining
Authority, issuing of the detention order itself would b~come
vitiated. The same view was taken in V.C. Mohan vs. Union c
of India AIR 2002 SC 1205.

43. In Alka Subhash Gadia's (supra) this Court followed
its earlier decision in Rajinder Arora's case (supra) in which
case it was held that failure to place the retraction of the
confession before the detaining authority vitiated the detention D
order. The same view was taken by this Court in P. Saravanan
vs. State of Tamil Nadu and others 2001(10) SCC 212,
Ahmea Nassar vs. State of Tamil Nadu and others 1999(8) ·
SCC 473, Sita Ram Somani vs. State of Rajasthan AIR 1986
SC 1072, etc. E

44. In Union of India & others vs. Manoharlal Narang
1987 (2) SCC 241 this Court deprecated the contention that
the detaining authority is not required to collect all materials
about any court proceedings etc from different Ministries or F
Departments for the purpose of issuance of a detention order.
The Court observed that non-consideration of a relevant material
will certainly invalidate the detention order. We respectfully
agree with the above view, and reiterate it.

45. In A. Sowkath Ali vs. Union of India and others , G
2000(7) SCC 148 this Court observed that if the Detaining ......-
Authority has relied on a confessional statement then the
retraction of that confession should also have been placed
before the Detaining Authority, and should have been
H
1086 SUPREME COURT REPORTS [2008) 15 S.C.R.

A considered by it, and failure to do so would invalidate the
detention order.

46. In our opinion, failure to place the retractions and other
materials referred to in paragraph 4 of the petition before the
8 Detaining Authority would certainly vitiate the impugned
detention order.

47. Shri Soli Sorabjee, learned counsel for the petitioner
also submitted that the petitioner had stopped his alleged illegal
activities in.2006 and hence the detention of the petitioner now
C would be illegal. He has relied on a decision of this Court in
Maqsood Yusuf Merchant vs. Union of India and· another
Criminal Apeal No. 1337 of 2008 decided on 22.8.2008 by this . '
Bench. In that decision it was observed that the activities of the r
)
accused who was said to have indulged in unlawful activities ~

D were of the year as far back as 2002, and thereafter the )

appellant had not indulged in similar activities. Hence it was
held that continuing the order of detention today would be an
exercise. of futility and the same should not be given effect to
any further. ·
E
48.: Shr(Soti Sotabjee also relied on a decision of this
Court in AlpeshNavinchandra Shah vs. State of Maharashtra
and others 200?(2) S(;C 777(vide para 57) etc.

· 49. Sffri ''Soli Sorabjee, learned counsel; frtvited ou.r
F attention to ground · B' in the Writ Petition in _which it has been
stated that the petitioner has not done any business after
November 2006 when the alleged last consignment was
\--
cleared by the petitioner. This averment has not been rebutted
in the counter affidavit filed by the respondent Hence, Shri
G Sorabjee submitted that there is now no live link between the
alleged prejudicial activities and the purpose of detention now.
He has also relied upon the decisions of this Court in T.A. Abdul
Rehman vs. State of Kerala and others AIR1990 SC 225 State
of Maharashtra vs. Bhaurao Punjabrao Gawande AIR 2008
H
DEEPAK BAJAJ v. STATE OF MAHARASHTRA & ANR. 1087
[MARKANDEY KATJU, J.]

SC 1705 etc.· A

· 50. In our opinion, it is not necessary to go into this
submission of Shri Soli Sorabjee since we· are of the opinion
that the petition deserves to be allowed on the first ground,
namely, that the relevant material was not placed before the 8
Detaining Authority, and this vitiates the detention order.

51. The detention order in our opinion was clearly illegal
and deserves to be set aside. We order accordingly. The writ
petition is allowed. The impugned detention order dated
22.5.2008 stands quashed. No costs. C

N.J. Writ Petition allowed.