Holding

The Supreme Court held that the High Court was correct in refusing to quash the detention order as the case did not fall within any of the five exceptions, including the "wrong purpose" ground, and therefore dismissed the appeal.

Summary

The appellant, NARESH KUMAR GOYAL, challenged a preventive detention order issued by the State of Bihar under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, alleging that the order was passed belatedly and that the authorities made no effort to execute it, thereby suggesting it was issued for a wrong purpose. The High Court declined to quash the order at the pre‑arrest stage, invoking the limited exceptions under Alka Subhash Gadia. The Supreme Court examined whether the High Court was justified in exercising its jurisdiction under Article 226 and whether the case fell within any of the five recognized exceptions for pre‑execution interference. Relying on earlier precedents, the Court held that the order did not fall within any exception, particularly not the "wrong purpose" ground, and that mere delay without an unexplained reason is insufficient to invalidate a preventive detention order. Consequently, the appeal was dismissed, affirming the High Court's decision.

Issues considered

Whether the High Court was justified in refusing to quash a preventive detention order at the pre‑arrest stage under Article 226 of the Constitution
Whether the detention order was passed for a wrong purpose, given the alleged delay in its execution
Whether the facts of the case fall within any of the five exceptions enumerated in Alka Subhash Gadia for pre‑execution judicial interference
Whether delay in execution of a preventive detention order, without satisfactory explanation, warrants judicial intervention before arrest

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(i), s. 3(ii), s. 3(iii), s. 7

Subjects

preventive detentionArticle 226pre‑arrest judicial reviewwrong purposedelay in executionConservation of Foreign Exchange Actsmugglingconstitutional lawdetention order

Judgment

NARESH KUMAR GOY AL A
V.
UNION OF INDIA AND ORS.

OCTOBER 5, 2005

[B.P. SINGH, TARUN CHATTERJEE AND P.K. B
BALASUBRAMANY AN, JJ.]

•• Preventive Detention-Object of-,-He/d: ls not curative or reformative
or punitive-It is devised to afford protection to society from anti-social and C
subversive elements-The object is not to punish a man for having done
something but to intercept before he does it, and to prevent him from doing
so.

Preventive Detention-Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974-Sections 3(i), (ii) and (iiij and D
7-Detenu filed writ petition challenging the order of detention-Case of
\·
detenu that the detention order wm belatedly passed and also that the detaining
authority took no steps to implement the order-Held: The order was not
passed for a 'wrong purpose' as alleged-Case did not fall within any of the
exceptions enumerated in Alka Subhash Gadia 's case which would justifj;
interference by Court with an order of detention at the pre-execution stage- E
Hence, High Court was right in declining to quash the detention order-
Constitution of India, 1950-Artic/e 226.

In exercise of powers conferred by Section 3(i), (ii) & (iii) of the
Conservation of Foreign Exchange and Prevention of Smuggling Activities F
Act, 1974, the State of Bihar passed order of detention against the
appellant. The appellant filed writ petition challenging the detention order.
He alleged that the order of detention was belatedly passed and that there
was also delay in executing the said order since the detaining authority,
i.e. the State of Bihar did not take any effective steps to arrest appellant
and serve the order of detention upon him. He alleged that the order of G
detention had been passed for a 'wrong purpose'. But the High Court
declined to quash the order of detention at the pre-arrest stage. Hence
the present appeal.

Dismissing the appeal, the Court
17 H
18 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A HELD: 1. It is trite law that an order of detention is not a curative
or reformative or punitive action, but a preventive action, avowed object
of which being to prevent the anti-social and subversive elements from
imperiling the welfare of the country or the security of the nation or from
disturbing the public tranquility or from indulging in smuggling activities
B or from engaging in illicit traffic in narcotic drugs and psychotropic
substances etc. Preventive detention is devised to afford protection to
society. The object is not to punish a man for having done something but
to intercept before he does it, and to prevent him from doing so. It,
therefore, becomes imperative on the part of the detaining authority as
well as the executing authority to be very vigilant and keep their eyes
C skinned but not to turn a blind eye in securing the detenue and executing
the detention order because any indifferent attitude on the part of the
detaining authority or executing authority will defeat the very purpose of
preventive action and turn the detention order as a dead letter and
frustrate the entire proceedings. Inordinate delay, for which no adequate
explanation is furnished, lead to the assumption that the live and proximate
D link between the grounds of detention and the purpose of detention is
snapped. (21-F, G, H; 22-A, BJ

P.U. Iqbalv. UnionoflndiaandOrs., (1992( I SCC434;AshokKumar
v. Delhi Administration, (1982J 2 SCC 403 and Bhawarlal Ganeshmalji v.
E State of Tamilnadu, (197911 sec 465, relied on.

2. Coming to the facts of this case, at the highest the case of the
appellant is that the order of detention was belatedly passed and the State
of Bihar thereafter took no steps whatsoever to implement the order of
detention. Apparently the order has been passed with a view to prevent
F the appellant from smuggling goods or abetting the smuggling thereof etc.
The present case does not fall within any of the exceptions enumerated in
Atka Subhash Qadia which would justify interference by Court with the
order of detention at the pre-execution stage. Though the appellant sought
to bring this case under the third exception enumerate.d in Alka Subhash
Gadia, namely, that the order was passed for a wrong purpose, in the facts
G and circumstances of this case, it is not possible to accept the submission.
The High Court was, therefore, justified in refusing to exercise jurisdiction
under Article 226 of the Constitution of India to quash the order of
detention at the pre-arrest stage. (25-D, E, Fl

Additional Secretary to the Government of1ndia and Ors. v. Smt. Atka
H
NARESH KUMAR GOY AL v. U.0.L [B.P. SINGH. J.]' 19
Subhash Gadia and Anr.. [1992) Supp l SCC 496; Sayed Taher Bawamiya A
v. Joint Secretary to the Government of India and Ors., [2000) 8 SCC 630
and Union of India and Ors. v. Muneesh Suneja, [2001 I 3 SCC 92, relied
on.

Union of India and Ors. v. Parasmal Rampuria, [1998] 8 SCC 402,
referred to. B
CRIMINAL APPEL LA TE JURISDICTION : Criminal Appeal No. 1302
of 2005.

From the Judgment and Order dated 17.9.2003 of the Patna High Court
in Crl.W.J.C. No. 180 of 2003. C
Farook M. Razack, H.K. Puri, Ujjwal Banerjee, Mrs. Priya Puri, S.K.
Puri and V.M. Chauhan for the Appellant.

B. Krishna Prasad for the Respondent Nos. 1-2.
D
B. B. Singh and Mrs. Sunita R. Singh for the Respondents Nos. 4-5.

The Judgment of the Court was delivered by

B.P. SINGH, J. Special leave granted.
E
In this appeal the appellant impugns the order of detention passed
against him by the State of Bihar on September 4, 2002 in exercise of powers
conferred by Section 3(i), (ii) and (iii) of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as
'the Act'). The High Court by its impugned judgment and order dated
September 17, 2003 dismissed the writ petition and held that this was not an F
appropriate case in which the High Court could exercise its jurisdiction under
Article 226 of the Constitution of India to quash an order of detention even
before its execution. The correctness of the aforesaid view of the High Court
is challenged. before us.

The facts of the case are few and not disputed.
G

The appellant claims to be one of the partners of Mis. Prakash Transport,
a partnership firm having its principal place of business at Kolkatta with
branch offices all over India including one at Raxaul in the State of Bihar.
The firm is engaged in the business of transportation of goods by road by H
20 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A hiring public carrier trucks. According to the appellant, on August 28, 200 I
a Nepalese firm Mis. Prakash International Carriers Pvt. Ltd., Kathmandu,
Nepal, hired a vehicle owned by one Shri Vishwanath Prasad Kanu, a Nepalese
citizen, for transportation of goods from the god own of the appellant's firm
at Raxaul to Nepal. The appellant has no concern with the Nepalese firm
B Mis. Prakash International Carriers Pvt. Ltd. The truck hired by the aforesaid
Nepalese firm was detained at the Indian Land Custom Station at Raxaul and
an idol kept in a wooden box was recovered. This led to the search of the
premises of the appellant's firm at Raxaul and the search resulted in the
recovery of another idol kept in a wooden box. The statement of the driver
of the truck was recorded on August 29, 2001 and on the basis of his statement
C the complicity of the appellant was discovered. Accordingly his house at
Kolkatta was searched on September 11, 2001 and his statement recorded.
On February 22, 2002 a notice was issued to the appellant to show cause as
to why penalty be not imposed, and a criminal case was also registered
against him on April 16, 2002. Subsequently the appellant was released on
bail in the criminal case on August 16, 2002. The impugned order of detention
D was passed on September 4, 2001~ but till the appellant filed the writ petition
on June 25, 2003, the order of detention had not been executed by serving
it upon the appellant.

The case of the appellant is that in the criminal case, he appeared in
E person uptil December 20, 2002, even after the order of detention had been
passed, and yet no effort was made to arrest him. No process under Section
7 of the Act was issued against him even though it is the case of the respondents
that the appellant had been absconding. It is the case of the appellant that the
detaining authority, the State of Bihar, took no effective steps whatsoever to
arrest the appellant which showed that the order of detention had been passed
F for a purpose other than for which his detention under the Act could be
justified. The fact that the State Government did not exercise its power under
Section 7 of the Act is not disputed before us. All that has been shown to us
by the learned counsel appearing on behalf of the State is that some
correspondence was exchanged between the Criminal Investigation Department
G of the Government of Bihar with the Commissioner of Police, Kolkatta, West
Bengal. It was stated in the counter-affidavit filed on behalf of respondent
No.5 before the High Court that though a request had been made for immediate
compliance of the preventive detention order under the Act to the
Commissioner of Police, Kolkatta, no action was taken. Several such letters
addressed to the police authorities of the State of West Bengal, however,
H yielded no result.
21

-
NARESH KUMAR GOYAL v. U.0.1. [B.P. SINGH. J.]

Having regard to the facts and circumstances of the case it appears to A
us prima facie, that there has been delay in the execution of the detention
order and the State of Bihar has not taken effective steps to arrest the appellant
and serve the order of detention upon him. This, however, should not be
considered to be our concluded opinion in the matter, since it is always open
to the detenue to challenge the order of detention after arrest, and the question B
of delay in issuance or implementation of the order can be raised in such
proceeding.

The real issue which arises in the instant appeal is whether the High
"· Court was justified in law in not exercising its discretion under Article 226
of the Constitution of India to quash the order of detention at the pre-arrest C
stage.

Learned counsel for the appellant submitted that once it is shown that
the State has taken no steps to execute an order
/
of detention and the explanation
furnished by the State is unsatisfactory, it must be held that the order of
detention was not issued for the purpose for which it could be issued under D
the Act, and necessarily implied that the real purpose was something else, not
\ authorized by law. Jn such a case it made no difference whether the appellant
moved the High Court at the pre-arrest stage or after his arrest pursuant to
the order of detention. He emphasized that expeditious steps must be taken
by the State both in the matter of passing the order of detention and in
executing the same. Both are lacking in the instant case. The order of detention E
was passed on September 4, 2002 while the complicity of the appellant is
alleged to have been discovered on August 29, 2001 on the basis of the
statement of the driver of the vehicle. In the matter of implementation of the
order as well, there was considerable apathy and lethargy, since the order was
not even executed till the date the writ petition was filed on June 25, 2003. p

It is trite law that an order of detention is not a curative or reformative
or punitive action, but a preventive action, avowed object of which being to
prevent the anti-social and subversive elements from imperiling the welfare
of the country or the security of the nation or from disturbing the public
tranquility or from indulging in smuggling activities or from engaging in G
illicit traffic in narcotic drugs and psychotropic substances etc. Preventive
detention is devised to afford protection to society. The authorities on the
subject have consistently taken the view that preventive detention is devised
to afford protection to society. The object is not to punish a man for having
done something but to intercept before he does it, and to prevent him from H
22 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A doing so. It, .therefore, becomes imperative on the part of the detaining
authority as well as the executing authority to be very vigilant and keep their
eyes skinned but not to turn a blind eye in securing the detenue and executing
the detention order because any indifferent attitude on the part of the detaining
authority or executing authority will defeat the very purpose of preventive
action and turn the detention order as a dead letter and frustrate the entire
B proceedings. Inordinate delay, for which no adequate explanation is furnished,
led to the assumption that the live and proximate link between the grounds
of detention and the purpose of detention is snapped. (See : P. U. Iqbal v.
Union of India and Ors., [l 992) I SCC 434; Ashok Kumar v. Delhi
Administration., (J 982) 2 SCC 403 and Bhawarlal Ganeshmalji v. State of
C Tamilnadu, (1979) l SCC 465.

It is not necessary for us to multiply authorities because no exception
can be taken to the above proposition enunciated by this Court in a series of
decisions.

D Mr. B.B. Singh, learned counsel appearing on behalf of the State of
Bihar, submitted before us that the question involved in the instant appeal is
not whether the order of detention should be struck down on the ground that
the State of Bihar has not taken necessary steps to implement the order of
detention, but whether at the pre-arrest stage the High Court should have
exercised its jurisdiction under Article 226 of the Constitution of India to
E quash the order of detention on such grounds. He submitted that the decisions
of this Court have taken the view that exercise of discretion under Article
226 of the Constitution of India can be justified only in appropriate cases and
the scope for interference is very limited. Normally the Court would not
interfere with the order of detention at a pre-arrest stage under Article 226
p of the Constitution of India. He submitted that there are only 5 exceptions to
this rule which would justify interference by the Court at the pre-execution
stage with the order of detention. Those five situations have been enumerated
in the case of Additional Secretaiy to the Government of India and Ors. v.
Smt. Alka Subhash Gadia and Anr., [1992] Supp I SCC 496;

G "As regards his last contention, viz., that to deny a right to the proposed
detenue to challenge the order of detention 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
H
NARESH KUMAR GOYAL v. U.0.1. (B.P. SINGH, .I.] 23
pointed out by the authorities discussed above, there is a difference A
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 o.n the powers of the High
Court and this Court to review judicially the order of detention. The
powers under Articles 226 and 32 are wide, and are untrammeled by B
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 exercising these powers. 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 C
orders passed under detention law only. They extend to the orders
passed and 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 remedies provided by it before approaching the D
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 efficacious remedy is available. We
have while discussing the relevant authorities earlier dealt in detail E
with the circumstances under which these extraordinary powers are
used and are declined to be used by the courts. To accept Shri Jain's
present contention w.ould mean that the courts 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 F
Sibal for the appellants, as far as detention orders are concerned if in
every case a detenue is permitted to challenge and seek the stay of
the operation of the order before it is executed, the very purpose of
the order and of the law under which it is made will be frustrated
since such orders are in operation only for a limited period. Thirdly, G
and this is more important, it is not correct to say that the courts have
no power to entertain grievances against any detention order prior to
its execution: The courts have the necessary power and they have
used it in proper cases as has been pointed out above, although such
cases have been few and the grounds on which the courts have
interfered with them at the pre-execution stage are necessarily very H
24 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A 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
B grounds or (v) that the authority which passed it had no authority to
do so. The refusal by the courts to use their extraordinary powers of
judicial review to interfere with the detention orders prior to their
execution on any other ground does not amount to the abandonment

c
of the said power or to their denial to the proposed detenue, but
prevents their abuse and the perversion of the law in question".
.l

-
In Union of India and Ors. v. Paras ma/ Rampuria, [ 1998] 8 SCC 402,
when the order of detention passed under the Act was sought to be challenged
at the pre-arrest stage, this Court called upon the respondent first to surrender
pursuant to the detention order and then to have all his grounds examined on
merit.
D
In Sayed Taher Bawamiya v. Joint Secretary to the Government of
India and Ors., (2000] 8 SCC 630, an argument was advanced before this
Court that the exceptions enumerated in Alka Subhash Gadia (supra) were
not exhaustive. The submission was repelled and this Court observed :-

E "As we see it, the present case does not fall under any of the aforesaid
five exceptions for the court to interfere. It was contended that these
exceptions are not exhaustive. We are unable to agree with this
submission. Alka Subhash Gadia case shows that it is only in these
five types of instances that the court may exercise its discretionary
F jurisdiction under Article 226 or Article 32 at the pre-execution stage".

Jn Union of India and Ors. V. Muneesh Suneja, (2001] 3 sec 92, the
challenge was to the order of the High Court quashing the order of detention
at the pre-arrest stage on two grounds, first that there had been delay in
making the order of detention and second that after making the order of
G detention no effective steps had been taken to execute the same except to
make a vague allegation that the respondent was absconding. This Court
noticed the exceptional circumstances justifying interference by the High
Court at pre-arrest stage enumerated in Alka Subhash Gadia (supra). This
Court, thereafter, set aside the order made by the High Court observing :-

H "This Court has been categorical that in matters of pre-detention
NARESH KUMAR GOY AL v. U.0.1. [B.P. SINGH, J.] 25
cases interference of court is not called for except in the circumstances A
set forth by us earlier. If this aspect is borne in mind, the High Court
of Punjab and Haryana could not have quashed the order of detention
either on the ground of delay in passing the impugned order or delay
in executing the said order, for mere delay either in passing the order
or execution thereof is not fatal except where the same stands
unexplained. In the given circumstances of the case and if there are B
good reasons for delay in passing the order or in not giving effect to
it, the same could be explained and those are not such grounds which
•• could be made the basis for quashing the order of detention at a pre-
detention stage. Therefore, following the decisions of this Court in
Addi. Secy. to the Govt. of India v. Atka Subhash Gadia and Sayed C
Taher Bawamiya v. Jt. Secy. to the Govt. of India, we hold that the
order made by the High Court is bad in law and deserves to be set
aside".

Coming to the facts of this case, at the highest the case of the appellant
is that the order of detention was belatedly passed and the State of Bihar D
thereafter took no steps whatsoever to implement the order of detention.
Counsel for the appellant sought to bring this case under the third exception
enumerated in Atka Subhash Gadia (supra), namely, that the order was passed
for a wrong purpose. In the facts and circumstances of this case, it is not
possible to accept the submission that the order was passed for a wrong E
purpose. Apparently the order has been passed with a view to prevent the
appellant from smuggling goods or abetting the smuggling thereof etc. The
facts of the present case are no different from the facts in Muneesh Suneja
(supra). We do not find that the case falls within any of the exceptions
enumerated in Alka Subhash Gadia (supra). The High Court was, therefore,
justified in refusing to exercise jurisdiction under Article 226 of the F
Constitution of India to quash the order of detention at the pre-arrest stage.
This appeal is, therefore, devoid of merit and is dismissed.

B.B.B. Appeal dismissed.