Supreme Court of India
SUBHASH POPATLAL DAVEversusUNION OF INDIA & ANR.
- Citation
- 2013 INSC 467
- Decided
- 16 July 2013
- Disposal
- Disposed off
- Bench
- ALTAMAS KABIR
Holding
A preventive detention order cannot be quashed merely due to a long lapse of time; the material relied upon at the time of issuance must be examined, and the live‑nexus test does not automatically apply to unexecuted orders where delay is caused by the detainee’s own conduct.
Summary
The Supreme Court considered a batch of writ petitions challenging preventive detention orders issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) and the National Security Act, 1980. The petitioners, many of whom had absconded or evaded execution of the orders, argued that the long lapse of time broke the "live nexus" between the material on which the orders were based and the present situation, warranting quashing of the orders. The Court held that a detention order cannot be set aside merely because of delay; the sufficiency of the material relied upon at the time of issuance is the decisive factor. While the orders may be challenged at the pre‑execution stage on grounds beyond the five exceptions in Alka Subhash Gadia, the live‑nexus test does not apply to unexecuted orders where the delay is attributable to the detainee’s own evasion. Where a settlement under the Customs Act granted immunity, the detention order became redundant and was quashed. All pending matters were dismissed, leaving the petitioners free to pursue remedies after service of the grounds of detention.
Issues considered
- The scope of pre‑execution judicial review of preventive detention orders under COFEPOSA and NSA.
- Whether the "live nexus" test applies to the execution of a detention order that remains unexecuted for a long period.
- Whether a detainee who has absconded can rely on the lapse of time to challenge the order.
- Whether settlement and immunity under the Customs Act render a preventive detention order invalid.
- Whether the five exceptions in Alka Subhash Gadia are exhaustive for pre‑execution challenges.
Legislation cited
- Code of Criminal Procedure, 1973s. 82, s. 83, s. 84, s. 85
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1), s. 6, s. 7
- Customs Act, 1962s. 127A, s. 127B, s. 127C, s. 127D, s. 127E, s. 127F, s. 127G, s. 127H, s. 127I, s. 127J, s. 127K, s. 127L, s. 127M, s. 127N
- National Security Act, 1980s. 6, s. 7
- Right to Information Act, 2005
Subjects
preventive detentionlive nexusCOFEPOSANational Security Actpre‑execution challengeabscondingsettlement immunityArticle 22fundamental rightsjudicial review
Judgment
(2013] 17 S.C.R. 596
A SUBHASH POPATLAL DAVE
v.
UNION OF INDIA & ANR.
(WRIT PETITION (CRL.) N0.137 OF 2011)
JULY 16, 2013
8
[ALTAMAS KABIR, CJI, GYAN SUDHA MISRA AND J.
CHELAMESWAR, JJ.]
Preventive Detention - Test of live nexus in the context
C of examining the legality of the order of preventive detention
- If can be _automatically applied to the question of the legality
of the execution of the preventive detention orders where there
is a considerable time gap between the passing of the order
of preventive detention and its execution - Whether the
D proposed detenues who absconded or evaded the execution
of the detention order, and subsequently challenged the order
of detention at the pre-execution stage after a long lapse of
time could take advantage of non-execution and challenge
the detention order which remained unexecuted - Held (per
E majority): The order of detention cannot be quashed and set
aside merely due to long lapse of time on the specious plea
that there is no live link between the order of detention and
the subsequent sit"ation - Where proceedings were initiated
consequent upon absconding of the proposed detenu, the
F challenge to the detention orders on the live nexus theory is
impermissible - Permitting such an argument would amount
to enabling the law breaker to take advantage of his own
conduct which is contrary to law - FilL.B circumstances
specified in Alka Subhash Gadia case are not exhaustive
grounds on which a pre-execution scrutiny of the legality of
· G preventive detention order can be undertaken - But it cannot
1
be held that such a scrutiny ought to be undertaken with
reference to the cases of those who evaded the process of
law - Those who evaded the process of law not to be heard
H 596
.
SUBHASH POPATLAL DAVE v. UNION OF INDIA 597
by the Court to say that their fundamental rights are in A
jeopardy - Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1974 - ss.6 and 7 - National
Security Act, 1980 - ss.6 and 7.
The question which initially arose for consideration
B
before this Court in all these matters was whether a
detention order passed under the provisions of the
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (COFEPOSA) could be
challenged at the pre-execution stage only on any of the C
five exceptions carved out by this Court in Atka Subhash
Gadia case, or whether such challenge could be
maintained on other grounds as well.
This Court (Bench) vide judgment and order dated
10.07.2012 held that the order of preventive detention can D
be challenged beyond the five conditions enumerated in
Atka Subhash_Gadia's case. It was held that the order of
preventive detention can be challenged beyond the five
grounds enumerated in the case of Atka Subhash Gadia's
case at the pre-execution stage. E
However, inasmuch as orders of preventive
detention either under the COFEPOSA Act or the National
Security Act, 1980 were pending unexecuted for varying
periods ranging ·fr.om 2 to 10 years approximately, a·
further question cropped up for consideration before this F
Court as to whether the proposed detenues who
absconded or evaded the execution of the detention
order, and subsequently challenged the order of·
detention at the pre-execution stage after a long lapse of
time could take advantage of non-execution and G
challenge the detention order which remained
unexecuted.
Whether the test of hive nexus developed by this
Court in the context of examining the legality of the order H
598 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 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 was thus the
8 question involved in these matters.
Disposing of the matters, the Court
HELD:
Per Gyan Sudha Misra, J. [With Chelameswar, J.
C concurring]
1. It is essentially the sufficiency of materials relied
upon for passing the order of detention which ought to
weigh as to whether the order of detention was fit to be
o quashed and set aside and merely the length of time
and lil_>erty to challenge the same at the pre-execution
stage which obviated the execution of the order of
preventive detention cannot be the sole consideration for
holding that the same is fit to be quashed. When a
E proposed detenue is allowed to challenge the order of
detention at the pre-execution stage on any ground
whatsoever contending that the order of detention was
legally unsustainable, the Court will have an occasion to
examine all grounds except sufficiency of the material
F relied upon by the detaining authorities in passing the
order of detention which legally is the most important
aspect of i:he matter but cannot be gone into by the Court
as it has been allowed to be challenged at the pre-
execution stage when the grounds of detention has not
even been served on him. [Para 14] [652-C-F]
'G
2. 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
H of time specially when the detenue is allowed to
SUBHASH POPATLAL DAVE v. UNION OF INDIA · 599
. challenge the order of detention even before the order of A
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 B
the process and subsequently would be allowed to raise
the plea of long pendency of the detention order which
could not be served and finally seek its quashing on the
plea that it has lost its live link with the order of detention.
This would_ render the very purpose of preventive c
detention laws as redundant and nugatory which cannot
be permitted. On the contrary, if the. order of detention is
allowed to be served on the proposed detenue even at a
later stage, it would be open for the proposed detenue
to confront the materials or sufficiency of the material
0
relied upon by the authorities for passing the order of
detention so as to contend that at the relevant time wheri
the order of detention was passed, the same was based
on non-existent or unsustainable grounds so as to quash
the same. But to hold that the same is fit to be quashed
merely because the same could not be executed for one E
reason or the other specially when the proposed detenue
was evading the detention order and indulging in forum
shopping, the laws of preventive detention would surely
be reduced into a hollow piece of legislation which is
surely not the purpose and object of the Act. [Para 15] F
[652-F-H; 653-A-D]
3. Therefore, the order of detention is not fit to be
quashed and should not be quashed merely due to long
lapse of time but the grounds of detention ought to be G
served on him once he gains knowledge that the order
of detention is in existence so as to offer him a plank to
challenge even the grounds of detention after which the
courts will have to examine whether the order of
detention which was passed at the relevant time but H
600 SUPREME COURT REPORTS (2013] 17 S.C.R.
A could not be served was based on sufficient material
justifying the order of detention ..[Para 16] [653-E-F]
4. Since the order of detention can be challenged on· p'
any ground beyond five conditions even at the pre-
B execution stage, it is in the fitness of things that the
materials relied upon by the authorities be served on the
proposed detenues so as to be considered before the
appropriate forum whether the order of detention was fit
to be sustained or not at the relevant time. In the process
what has been the activities of the proposed detenue
C 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
D 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
E authorities at the relevant time alone should weigh with
the courts as to whether the order of detention was
justified or was fit to be quashed. It is also not possible
to lose sight of the fact that if the petitioners and the
appellants had preferred not to challenge the order of
F 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
G before it was executed, it is not open for them to
contend that it should be quashed because there is no
live link between the existing/subsequent situation and
the previous situation when the order of detention was
passed overlooking that they s11cceeded in pre-empting
H" the order by challenging it at the pre-execution stage
SUBHASH POPATLAL DAVE v. UNION OF INDIA 601
never allowing the matter to proceed so as to examine A
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 B
on- the detenue and cannot be gone into when the only
question raised is regarding the correctness and legality
of _the order of detention. [Para 18] [654-E-H; 655-A-F]
5. The order of detention cannot be quashed and set
aside merely due to long lapse of time on the specious ~
plea that there is no live link between the order of
detention and the subsequent situation. The order of
detention is not fit to be quashed merely due to long lapse
of time specially when the orders of detention tiave been
allowed to be challenged even at the pre-execution stage D
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 E
authorities to pass the orders of detention which were
existing at the relevant time and approve or disapprove
the same. In fact, there is no material before this Court
even to arrive at a definite finding as to whether the
proposed detenue have indulged in any activity after F
the passing of the order of detention nor it is· relevant in
my view to take into account the subsequent events
while considering the correctness of the order of
detention passed at the relevant time. It would be equally
hypothetical to observe that in case the orders of G
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
602 SUPREME COURT REPORTS [2013) 17 S.C.R.
A order of detention was fit to be quashed. Nevertheless,
when the duty is cast upon this Court at this stage
merely to consider whether the order of detention could
be allowed to be challenged on other grounds, than
what was delineated in Alka Subhash Gadia's case as
B also the fact whether the order of detention can be
quashed on the ground of long lapse of time, it would
not be legally appropriate to hold that the order of
detention is fit to be quashed merely because there is no
live link between the existing period and situation and
C the date on which the order of detention was passed.
[Para 19] [655-G-H; 656-A-H; 657-A]
6. It is deemed correct and legally appropriate to hold
that the orders of detention are not fit to be quashed but
the same are fit to be served on the petitioners/appellants
D 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
E stage after the order of detention is served on the
proposed detenue. All the matters are consequently fit
to be dismissed and are dismissed leaving it open to the
Petitioners/Appellants to take recourse to remedies
available to them in accordance with the provisions and
F procedure established by law after the grounds of
detention are served on them. [Para 20] [657-C-D, F]
Sunil Fulchand Shah vs. Union of India (2000) 3 SCC
409: 2000 (1) SCR 945;
G Sayed Taher Bawamiya vs. Govt. of India (2000) 8
sec 630 - overruled.
Hare Ram Pandey vs. State of Bihar & Ors. (2004) 3
SCC 289: 2003 (6) Suppl. SCR 627; Union of India vs. Amrit
H Lal Manchanda & Anr. (2004) 3 SCC 75: 2004 (2) SCR 422;
SUBHASH POPATLAL DAVE v. UNION OF INDIA 603
Union of India vs. Vidya Bagaria (2004) 5 SCC 577: 2004 A
(1) Suppl. SCR 949; Union of India & Ors. vs. Atam Parkash
& Anr. (2009) 1 SCC 585: 2008 (16) SCR 607; Bhawarlal
Ganeshmalji vs. State of Tamil Nadu And Anr. (1979) 1 SCC
465: 1979 (2) SCR 633; Vinod K Chawla vs. Union of India
& Ors. (2006) 7 SCC 337: 2006 (4) Suppl. SCR 651; Union B
of India vs. Parasmal Rampuria (1998) 8 SCC 402;
Dropti Devi and Anr. vs. Union of India & Ors. (2012) 7
SCC 499: 2012 (6 ) SCR 307 - relied on.
Additional Secretary to the Govt. of India And Ors. vs. c
Alka Subhash Gadia And Anr. 1992 Supp (1) SCC 496:
1990 (3) Suppl. SCR 583 - referred to.
Per Chelameswar, J. [Concurring with Gyan Sudha
Misra, J.]
D
HELD:1. 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 E
.'
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 tile limitations contained under Articles F
20 and 21 of the Constitution of India. [Para 7] [659-0-E]
2. Article 22 of the Constitution recognises the
authority of the State to preventively detain a person
notwithstanding the fact that such a person is neither G
convicted for the commission of any offence nor
sentenced in accordance with law. The authority of the
State to resort to such preventive detention is more
stringently regulated by the dictates of Article 22. The
satisfaction of the State to arrive at a conclusion that a
H
604 SUPREME COURT REPORTS [2013] 17 S.C.R.
···"
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
B limited grour;ids. [Paras 8 and 9] [659.F-G; 660-B]
3. One of the grounds on which an order of
preventive detention can be declared invalid is that there
is no live nexus between (1) the material which formed
the basis for the State to record its subjective satisfaction,
C and (2) the opinion of the State that it is necessary to
. preventively detain a person from acting in any manner
prejudicial to the public interest or security of the State
etc. In other words, the material relied upon by the State
for preventively detaining a person is so stale that the
D State could not have rationally come to a conclusion that
it is necessary to detain a person without a charge or
trial. [Para 1OJ [660-C-D]
4. There could be two reasons which may lead to a
E situation by which the preventive detention order passed
by the competent authorities under the various
enactments could remain unexecuted, (1) the absconding
of the proposed detenu from the process of law (2) the
apathy of the authorities responsible for the
F implementation of the preventive detention orders. [Para
14] [661-D]
5. The legislature was conscious of the fact that it
can happen in some cases that the execution of the
preventive detention order could be scuttled by the
G 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
H such a possibility. It can be seen from the said section
SUBHASH POPATLAL DAVE v. UNION OF INDIA 605
that in a case where proposed detenu is absconding or A
concealing himself, the Government may report the matter
to the Magistrate having jurisdiction over the place where
the proposed detenu ordinarily resides. On making of
such report by the Government, the provisions of
Sections 82, 83, 84 and 85 of the Code of Criminal B
Procedure apply to the proposed detenu and his
property, as if the order of preventive detention is a
warrant issued by the Magistrate under the provisions of
the Code of Criminal Procedure. In substance, the
property of the propose(! detenu could be attached and C
perhaps even be confiscated in an appropriate case.
[Paras 15, 16 and 17] [661-E-F; 662-F-H; 663-A]
6. If a preventive detention order is to be quashed or
declared illegal merely on the ground that the order
remained unexecuted for a long period without examining D
the reasons for such non-execution, the legislative
intention contained in provisions such as Section 7(b) of
the COFEPOSA Act would be rendered wholly nugatory.
Parliament declared by such provision that an
(recalcitrant) indiyidual against whom an order of E
preventive detention is issued is under legal obligation
to appear before the notified authority once a notification
contemplated under Section 7(b) of COFEPOSA Act is
issued. Failure to appear without a reasonable excuse
would be an offence and render the defaulter liable for a F
punishment of imprisonment. Holding that the preventive
detention orders are themselves rendered illegal, on the
basis of the live nexus theory (which, is valid only. for
examioing the legality of the order, viz-a-viz the date on
which the order is passed) would not only exonerate the G
person from the preventive detention order but also
result in granting impunity to such person from the
subsequent offence committed by him under the
provisions such as Section 7(b) of the COFEPOSA Act.
[Para 19] [663-G] H
606 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 7. Those who have evaded the process of law shall
not be heard by this Court to say that their fundamental
rights are in jeopardy. At least, in all those cases, where
proceedings such as the one contemplated under
Section 7 of the COFEPOSA Act were initiated
B consequent upon absconding of the proposed detenu,
the challenge to the detention orders on the live nexus
theory is impermissible. Permitting such an argument
would ·amount to enabling the law breaker to take
advantage of his own conduct which is contrary to law.
c .Even in those cases where action such as the one
contemplated under Section 7 of the COFEPOSA Act is
not initiated, the same may not be the only consideration
for holding the order of preventive detention illegal.
[Paras 23 and 24] [664-H; 665-A-C]
D · 8. The question whether the five circumstances
specified .in Atka Subhas(l Gadia case are exhaustive of
the grounds on which a pre-execution scrutiny of the
legality of preventive detention order can be undertaken
was considered earlier in the instant case. It was held that
E the grounds are not exhaustive. But it cannot be held
that such a scrutiny oughf to be undertaken with
reference to the cases of those who evaded the process
of law. [Para 27] [665-G-H; 666-A]
F Bhawarlal Ganeshmay·; Vs. State of Tamil Nadu & Anr.
(1979) 1 SCC 463; M. Ahamedkutty Vs. Union of India & Anr.
(1990) 2 SCC 1; Union of India & Ors. Vs. Arvind Shergif/ &
Anr. (2000) 7 SCC 601 and Shafiq Ahmad Vs. District
Magistrate, Meerut (1989) 4 SCC 556: 1989 (1) Suppl. SCR
G 56 - relied on.
American Communications Association C.I. 0. vs.
Charles T. Douds [339 US 385) [94 Led 925 at 968] -
referred to.
H Per Altamas Kabir, CJI. (dissenting)
SUBHASH POPATLAL DAVE v. UNION OF INDIA 607
1. The five exceptions culled out in Atka Subhash A
Gadia's case were not intended to be exclusive. It was
not the intention of the Hon'ble Judges in Atka Subhash
Gadia's case to confine the challenge at the pre-execution
stage only to the five exceptions mentioned therein, as
that would amount to stifling and imposing restrictions B
on the powers of judicial review vested in the High
Courts and the Supreme Court under Articles 226 and
32 of the Constitution. The exercise of powers vested in
the superior Courts in judicially reviewing executive
decisions and orders cannot be subjected to any c
restrictions, as such powers are untrammelled and
vested in the superior Courts to protect all citizens and
non-citizens, against arbitrary action. The law is never .
static, but dynamic and the right to freedom being one
of the most precious rights of a citizen, the same could
0
not be, interfered with as a matter of course and even if it
is in the public interest, such powers would have to
be exercised with extra caution and not as an alternative
to the ordinary laws of the land. (Para 39] (635-F-H; 636-
A-C]
E-
2. Since, it was the intention of the Sponsoring
Authorities that a person having criminal propensities
should be prevented from indulging in the same to the
prejudice of the public at large and from also indulging
in economic offences against the Revenue, it would have F
to be established that the intention with which the
preventive detention order had been passed continued
to subsist so that the same could be executed even at a
later date. In none of the instant cases, have the ·
Sponsoring Authorities or the Detaining Authorities G
been able to establish that after the passing of the
detention order the proposed detenues had continued
with their activities, as enumerated in the detention
orders, which would support the proposition that the
object of the detention orders continued to be valid, even H
608 SUPREME COURT REPORTS (2013] 17 S.C.R.
A after the lapse of several years. Having regard to the
above, where the detention orders in the instant group
of cases have not been executed for more than two
years and there is no material on record to indicate that
the proposed detenue had, in the meantime, continued
B his anti-social activities, it has to be held that the
detention orders in respect of such proposed detenues
were no longer relevant and must be quashed. [Para 40)
[636-E-H; 637-A]
3. Once immunity from criminal prosecution is
C granted, the question of preventive detention for the
same cause of action loses its relevance, unless the
proposed detenue under the provisions of the
COFEPOSA Act, 1974, or any other ancillary provisions,
is involved in fresh transgression of the law. [Paras 41,
. D 42) [637-G-H; 638-A]
4. It is seen from the provisions of Section 7 of
the COFEPOSA Act that if the appropriate Government
has reason to believe that a person in respect of whom
E a detention order has been made, is absconding, or
is concealing himself so that the order cannot be
executed, the Government may take recourse to the
provisions of Sections 82, 83, 84 and 85 CrPC and his
property, as if the order directing him that he be detained
F were a warrant issued by the Magistrate. Section 7(1)(b)
also provides for penal consequences, in the event
directions given thereunder, are not complied with by
the proposed detenue. Accordingly, Section 7 empowers
the Government to take recourse to either the
provisions of the Code of Criminal Procedure relating
G to absconding persons or pass an order directing the
person concerned to appear before the concerned
officer and on the detenue's failure to do so, to inflict
punishment with imprisonment for a term which could
extend to one year or with fine or both. The provisions
H
SUBHASH POPATLAL DAVE v. UNION OF INDIA 609
of Sections 6 and 7 of the National Security Act, 1980, are A
identical to the provisions of Sections 6 and 7 of the
COFEPOSA Act, 1974. The said provisions clearly
enumerate the powers vested in the Authorities when a
proposed detenue absconds. That is the ordinary law of
the land, and not preventive detention, which is meant to s
prevent the commission of offences, and not to punish
an individual for violation of statutory provisions.
[Paras 45, 46, 47 and 48] [639-E-H; 640-A-C]
5. There is difference between preventive detention
and the ordinary criminal law providing for detention C
and arrest. While the Constitution, which is the
cornucopia of all laws, accepts the necessity of providing
for preventive detention, it also provides certain
safeguards against arbitrariness and making use of the
provision as a tool against political opponents. Since D
the said provision deprives a citizen of some of the basic
and fundamental rights guaranteed to him under the
Constitution, the Courts have dealt with laws relating
to preventive detention with great care and caution to
ensure that the provision was not misused by the E
Investigating Authorities as an easy alternative to proper
investigation. Normally, the life of a preventive detention
order is one year. Such a period is intended to give
the detenue, who is detained without any trial, an
opportunity to introspect and reflect into his past deeds, F
and to dissuade him from indulging in the same in future.
In other words, the period of detention is intended not to
punish the detenue, but to make him realize the impact
of his earlier indiscretions on society and to discontinue
the same. [Para 49] [640-F-H; 641-A-B]
G
6. Both the Revenue, as also the police authorities,
appear to. be myopic in regard to the dividing line
between preventive detention and arrest for a crime
actually committed. On account of the above, the State
and its authorities have attempted to justify the H
610 SUPREME COURT REPORTS (2013] 17 S.C.R.
A continuance of the validity of detention orders even
after the lapse of several years after the passing .:if. the .
detention order, citing principles such as a person
cannot take advantage of his own wrong, in support
thereof. However, a person evading service of an order
B of preventive detention cannot be treated with the same
yard-stick as a person, accused of having committed
a criminal offence and evading arrest to thwart the
criminal process initiated against him. The two principles
stand on different footings. In the first place, the proposed
c detenue is detained without being made an accused in
connection with any particular case, but to prevent him
from committing an .offence, whereas in 1 the second
place, a person actually charged with having committed
an offence is on 'the run to avoid the consequences
D 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
E 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
F 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
G indulged in any such activity after the order of preventive
detention was passed, it would be illogical to pursue the
execution of the detention order as the arrest and
detention of the proposed detenue would become
irrelevant and would not achieve the object for which it
H had been passed. [Para 50] [641-C-H; 642-A-C]
SUBHASH POPATLAL DAVE v. UNION OF INDIA 611
7. The concept of a person being prevented from A
taking advantage of his own wrong cannot be applied
in the case of a detention order where the object of
passing such an order is quite different from
proceeding against a person charged with having
committed a criminal offence. The continued validity of B
a detention order would depend on whether the
proposed detenue was in the record books of the
authorities as a person habitually indulging in
activities which were against the national interest and
society in general and that it was, therefore, necessary . c
in the public interest to detain him for a period of one
year to prevent him from continuing with such
activities and not to punish him as such. [Para 51] [642-
D-F]
8. Not only is a proposed detenue entitled to D
challenge the detention order at the pre-execution stage,
but he is also entitled to do so after several years had
elapsed after the passing of the detention order on
'grounds other than the five grounds enumerated in
Alka Subhash Gadia's case. The orders of detention E
must not, as a matter of course, be read as an alternative
to the ordinary laws of the land to avoid the rigours of
investigation in order to make out a case for prosecution
against the proposed detenue. Also if a dispute leading
to the issuance of the detention order is settled on the F
basis of a statutory provision such as Chapter XIVA of
the Customs Act, 1962 and in terms of the Statute
immunity from prosecution under Section 127H of the
Act is given, the continuance of the order of detention
would be completely illogical and even redundant. G
Accordingly, in such cases, the orders of preventive
detention are liable to be quashed along with the
Warrants of Arrest and Proclamation and Attachment
issued under Sections 82 and 83 of the Code of Criminal
Procedure. [Para 52] [643-A-E] H
612 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 9. The orders of detention challenged in the case at
hand are quashed on the ground that the said orders had
become stale and the live link between the orders of
detention and the object sought to be achieved by the
said orders, stood snapped. Some of the orders had
B been made thirteen years ago and the very purpose of
such detention orders had been rendered meaningless
in the absence of any material that the proposed
detenues had continued to indulge in activities which
form the basis of the preventive detention orders. [Para
C 53) [643-F-G).
Sayed Taher Bawamiya vs. Govt. of India (200Q) 8
sec 630 - not affirmed.
M. Ahamedkutty vs. Union of India (1990) 2 SCC 1: 1990
D (1) SCR 209; Dropti Devi vs. Union of India (2012) 7 SCC
499: 2012 (6) SCR 307 and Union of India vs. Amrit Lal
Manchanda (2004) 3 SCC 75: 2004 (2) SCR 422 -
distinguished.
Addi. Secretary, Govt. of India vs. Atka Subhash Gadia
E (1992) Supp. (1) S'tc 496: 1990 (3) Suppl. SCR 583; Union
of India vs. Atam Prakash & Anr. (2009) 1 SCC 585: 2008
(16) SCR 607; Rekha vs. State of Tamil Nadu (2011) 5 SCC
244: 2011 (4) SCR 740; Maqsood Yusuf Merchant vs.
Union of India (2008) 16 SCC 31; Yusuf Razak Dhanani
F vs. Union of India W.P.(Crl.) No. 132 of 2007; Sanjeev Jain
vs. Union of India Crl. Appeal No. 1060 of 2010; Asha
Devi vs. 7; K. Shivraj (1979) 1 SCC ~22: 1979 (2) SCR 215;
State of U.P. vs. Kamal Kishore Saini (1988) 1 SCC 287:
1988 (1) SCR 859; Ayya alias Ayub vs. State of U.P. (1989)
G 1 SCC 374: 1988 (3) Suppl. SCR 967; Union of India vs.
Maj. Gen. Madan Lal Yadav (1996) 4 SCC 127: 1996 (3)
SCR 785; Saeed Zakir Hussain Malik vs. State of
Maharashtra (2012) 8 SCC 233: 2012 (7) SCR 235;
Bhawarlal Ganeshmalji vs. State of Tamil Nadu (1979) 1 SCC
H 465: 1979 (2) SCR 633; Union of India vs. Arvind Shergill
SUBHASH POPATLAL DAVE v. UNION OF INDIA 613
(2000) 7 SCC 601; Vinod K. Chawla vs. Union of India A
(2006) 7 SCC 337: 2006 (4) Suppl. SCR 651; Hare Ram
Pandey vs. State of Bihar (2004) 3 SCC 289: 2003 (6)
Suppl. SCR 627; Naresh Kumar Goyal vs. Union of India
(2005) 8 SCC 276: 2005 (4) Suppl. SCR 17; Subhash
Muljimal Gandhi vs. L. Himingliana (1994) 6 SCC 14: B
1994 (2) Suppl. SCR 785; State of Maharashtra vs. Bhavrao
Gawanda (2008) 3 SCC 613: 2008 (3) SCR 967 - referred
to.
Case Law Reference:
d
In the judgment of Gyan Sudha Misra, J.:
1990 (3) Suppl. SCR 583 referred to Para 2
2000 (1) SCR 945 relied on Para 2
D
(2000) 8 sec 630 relied on Para 7
2003 (6) Suppl. SCR 627 relied on Para 7
2004 (2) SCR 422 relied on Para 8
2004 (1) Suppl. SCR 949 relied on Para 8 E
2008 (16) SCR 607 relied on Para 8
1979 (2) SCR 633 relied on Para 9
2006 (4) Suppl. SCR 651 relied on Para 10
F
(1998) 8 sec 402 relied on Para 11
2003 (6) Suppl. SCR 627 relied on Para 12
2012 (6) SCR 307 relied on Para 13
G
In the judgment of Chelameswar, J.
(339 us 385) referred to Para 1
(1979) 1 sec 463 relied on Para 20
(1999) 2 sec 1 relied on Para 21 H
'
614 SUPREME COURT REPORTS [2013] 17 S.C.R.
A (2000) 1 sec 601 relied on Para 22
1989 (1) Suppl. SCR 56 relied on Para 24
In the judgment of Altamas Kabir, CJI:
1990 (3) Suppl. SCR 583 referred to Para 2
B
. ,(2000) 8 sec 630 not affirmed Para 2
2008 (16) SCR 607 referred to Para 2, 21
2011 (4) SCR 740
.
referrec! to Para 7
c
~2008) 16 sec 31 referred to Para 10, 13
1979 (2) SCR 215
.
referred to Para 20
1988 (1) SCR 859 referred to Para 20
D 1988 (3) Suppl. SCR 967 referred to Para 20
1996 (3) SCR 785 referred to Para 22
2012 (6) SCR 307 distinguished Para 22, 48,
51
E
2012 (7) SCR 235 referred to Para 23
1979 (2) SCR 633 referred to Para 23
2004 (2) SCR 422 distinguished Para 24
F 1990 (1) SCR 209 distinguished Para 24
.
(2000) 1 sec· so1
. referred to Para 24
2009 (4) Suppl. SCR 651 referred to Para 24
G 2003 (6) Suppl. SCR 627 referred to Para 24, 34
2005 (4) Suppl. SCR 17 referred to Para 24
1994 (2) Suppl. SCR 785 referred to Para 24
2008 (3) SCR 967 referred to Para 34
H
SUBHASH POPATLAL DAVE v. UNION OF INDIA 615
CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.) A
No (s) .137 of 2011.
Under Article 32 of The Consitution of India.
WITH
B
W.P. (Crl.) Nos. 138 & 35 of 2011, Crl. A. Nos. 932 & 931 of
2013,
W.P. (Crl.) Nos. 220, 249 of 2011, 14 of 2012,'
Crl. A. No. 930, 961-962 of 2013 & T. C. (Crl.) Nos. 2-3 of c
2013
P. P. Malhotra, ASG, Mukul Rohatgi, B. H. Marlapalle,
Pramod K. Singh, Ravindra Keshavrao Adsure, Saurabh Kirpal,
Dr. G. K. Sarkar, Sanja.Y Agarwal, Karan Bharioke, Malabika
Sarkar, Prashant Srivastav, D. Mahesh Babu, Sujay N. D .
Kantawala, Rakesh Dahiya, Nikhil Jain, Ranjana Narayan, .
Chetan Chawla, Asha G. Nair, B. Krishna Prasad, Arvind4,. ·
. Kumar Sharma, Anita Bafna, Gopal Balwant Sathe, Dr. Kailash ., .
Chand for the Appearing Parties.
The three Judg_ments of the Court were delivered by E
,, .
ALTAMAS KABIR, CJi. 1. L-eave granted in the Special
Leave Petitions. Transfer Petition (Crl.) Nos.38-39 are allowed.
2. The common thread which runs through these matters
being heard together is the challenge thrown in each matter to F
detention orders passed either against the Petitioners
themselves or the persons represented by them. The common
question of law involved in these Appeals, Writ Petitions and
Transfer Petitions is whether a detention qrder passed under
the provisions of the Conservation of Foreign Exchange and G
Prevention of Smuggling Activities Act, 1974, hereinafter.
referred to as "the COFEPOSA Act, 1974", could be challenged
at the pre-execution stage only on any of the five/exceptions
carved out by this Court in Addi. Secretary, Govt. of India vs.
Alka Subhash Gadia [(1992) Supp. (1) SCC 496], or whether H
616 SUPREME COURT REPORTS [2013) 17 S.C.R.
A such challenge could be maintained on other grounds as well.
The matter had come up for hearing on the said question on
several days when we had occasion to consider the decisions
referred to by the learned Additional Solicitor General, Mr. P.P.
Malhotra in Sayed Taher Bawamiya Vs. Joint Secretary,
B Government of India [(2000) 8 SCC 630) and in the case of
Union of India Vs. Atam Prakash & Anr. [2009) 1 SCC 585),
wherein it had been held that the grounds of challenge to a
detention order at the pre-execution stage could only be
confined to the five exceptions set out in Alka Subhash Gadia's
c case (supra). After having considered all the said decisions and
the submissions made on behalf of the respective parties and
keeping in mind the fact that the most precious right of a citizen
is his right to freedom, we were convinced that the right of a
detenue to challenge a prevention detention order passed
against him at the pre-execution stage on grounds other than
D
those set out in paragraph 30 of the judgment in Alka Subhash
Gadia's case (supra) required further examination. We had
accordingly directed these matters to be listed for final hearing
on all the grounds of challenge directed against the detention
orders.
E
3. Appearing for the Appellants and the Writ Petitioners,
Mr. Mukul Rohatgi, learned Senior Advocate, submitted that the
question as to whether the five exceptions mentioned in Alka
Subhash Gadia's case (supra) were only illustrative and not
F 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
G to be exercised with extra caution and not simply as an
alternative to the ordinary laws of the land.
4. Mr. Rohatgi submitted that if it is to be accepted that
challenge to a detention order could be made at the pre-
execution stage only on the five exceptions mentioned in Alka
H Subhash Gadia's case, it would result in restrictions being
SUBHASH POPATLAL DAVE v. UNION OF INDIA 617
[ALTAMAS KABI~, CJI.]
imposed on the powers vested in the Supreme Court under A
Article 32 and in the High Courts under Article 226 of the
Constitution. Mr. Rohatgi submitted that with the passage of
time since the decision rendered in Alka Subhash Gadia's case
in 1992, new grounds of challenge, such as absence of live link
and intervention of Settlement Proceedings under the Customs B
Act, 1962, have been canvassed which could not have been
contemplated in Alka Subhash Gadia's case and cannot be
ignored in the facts of cases now being brought before the
Courts. Mr. Rohatgi submitted that a detenue must, therefore,
be held to have the right to challenge the detention order c
passed against him, at the preexecution stage, on different
grounds in addition to the five exceptions carved out in Alka
Subhash Gadia's case, but each matter would have to be
considered and decided on its own set of facts.
5. In all these cases, the common refrain is that the object D
sought to be achieved by passing the detention orders, were
no longer relevant and had become otiose, having regard to
the fact that the object of a detention order is not to punish a
citizen for a crime with which he had not been charged, but to
prevent him from committing such crime in the future. Mr. E
Rohatgi submitted that in these cases the said principles have
been violated and had been used by the concerned authorities
as a convenient alternative to the ordinary laws of the land.
6. In this background, the matter which was taken up first F
and treated as the lead matter, is Writ Petition (Crl.) No. 137
of 2011, filed by Subhash Popatlal Dave, questioning the
detention order issued by the Joint Secretary, Government of
India, on 18.08.1997, under Section 3(1) of the COFEPOSA
Act, 1974.
G
7. Mr. Rohatgi submitted that this was a classic example
of the sheer misuse of the powers vested in the authorities to
issue orders of detention as an alternative to the ordinary laws
of the land. Mr. Rohatgi submitted that, unless and until, it could
H
618 SUPREME COURT REPORTS [2013] 17 S.C.R.
A be shown that after the detention order was passed the detenue
had indulged in activities which were similar to those on
account whereof the detention order had been passel:!. the very
reason for the detention order stood eroded. The detention
order, which was to be valid for a period of one year, outlived
B its purpose after the said period, since there is nothing on
record to show that the proposed detenue had indulged in any
activities of a similar nature after the detention order was
passed. Mr. Rohatgi urged that there was no existing live link
between the detention order and the intention of the authorities
c to detain the detenue by virtue of such detention order. Apart
from the above, Mr. Rohatgi submitted that a prosecution has
also been commenced against the proposed detenue before
the Court of Additional Chief Metropolitan Magistrate,
Esplanade, Mumbai, for offences alleged to have been
committed under Sections 8(1), (2), (4), 9(1)(b), 9(1)(d), 14,
0
27(1), 49(3),(4), 56(1) of the Foreign Exchange Regulation Act,
1973, and the matter is now pending before the FERA
Appellate Tribunal, New Delhi. Mr. Rohatgi submitted that, as
has been held in the recent judgment of this Court in Rekha
Vs .. State of Tamil Nadu [(2011) 5 SCC 244], when adequate
E measures and remedies under the ordinary criminal law had
already been taken, there could be no necessity for issuance
of detention orders by resorting to preventive detention law, on
which count the impugned order of detention stands vitiated.
The Petitioner prayed that the impugned detention order No.
F F.673/89/97cCUS.Vlll dated 18.8.1997, issued by the Joint
Secretary, Government of India, under Section 3(1) of the
COFEPOSA Act, 1974, be declared void, unconstitutional and
illegal in the interest of justice.
G 8. The next case is that of Nitish Prakashchand Kottiari
[W.P.(Crl) No. 138 of 2011], who is himself the proposed
detenue under the detention order dated 3.12.2009. The said
order has been challenged on several grounds, including the
ground relating to the existence of a live link between the
H preventive detention order and the circumstances prevailing
. ~" ;
SUBHASH POPATLAL DAVEy. UNION OF INDIA 619
[ALTAMAS KABIR, CJI.]
today. Mr. Rohatgi subn:iitted that in the present' case more than A
three and a half years have passed since the impu'gned
detention order was passed and there is nothing on rec9rd to
·indicate that the proposed detenue had or was likely to indulge
. in activities described in the detention order. Accordingly, the
order of deten!iqn passed in respect of the Petitioner is required B
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 C
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 D
presen!Writ Petition [W.P.(Crl.) No. 35 of 2011] challenging the
same order of detention. Mr. Rohatgi submitted that, in fact, the
challenge in the Special Leave Petition filed before this Court
is against the judgment and order of the Bombay High Court
dismissing the challenge to the detention order. On the. other E
hand, Writ Petition [W.P.(Crl.) No. 35 of 2011] challenges the
same detention order directly in this Court. Mr. Rohatgi
submitted that the cause of action for the two proceedings are
different, although, they may both arise out of the order of
detention passed against the proposed detenue, Nit~sh Ashok F
Sadarangani. 1
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 deten.tion order had G
become stale since there is no material to indicate that the
proposed detenue had indulged in any activity during thi&
period which may have given some justification to the
continuance of the concerned detention order. Mr. Rohatgi
submitted that the long interval between the passing of the '
620 SUPREME COURT REPORTS [2013] 17 S.C.R.
A detention order and the execution of the order has diluted the
detention order and defeated the very purpose for which it was
passed. Mr. Rohatgi also drew an analogy with the case of one
Shri Nikunj Kirti Kanaria, whose detention order was revoked
at the pre-execution stage, since the same had become stale
B _Qwing Jo_pa_ssage of time. Mr. Rohatgi submitted that in the
present case the live link stood snapped as there was no
explanation for the long delay between the date of the detention
order and the failure to execute the same. Referring to the
decision of this Court in Maqsood Yusuf Merchant Vs. Union
c of Jndia[(2008) 16 sec 31], learned counsel submitted that this
Court had set aside the detention order under the COFEPOSA
Act, 1974, because of the long delay during which there was
nothing on record to indicate that the proposed detenue had
indulged in activities similar to those indicated in the detention
order._ Mr. Rohatgi submitted that on the ground of delay in
0
serving the detention order, the same had lost its very purpose
and was, therefore, liable to be quashed.
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
E passed by the Bombay High Court in Criminal Writ Petition No.
2675 of 2010, whereby several Writ Petitions, including that ~
filed by Suresh D. Hotwani, were disposed of. In the instant
case, the detention order was passed on 13.12.2007 and the
challenge thereto was taken up for consideration by the
F Bombay High Court along with several other matters, including
the Writ Petition filed by Suresh D. Hotwani (Criminal Writ
Petition No. 1645 of 2010) and Ajay Bajaj (Criminal Writ
Petition No. 103 of 2009). The same were disposed of by the
Bombay High Court by a common judgment dated 5.1.2011.
G In fact, the same arguments, as were advanced in Suresh D.
Hotwani's case, were advanced regarding the absence of a live
link between the impugned detention order and the attempt to
detain the Petitioner on the basis thereof after an interval of six
years. It was submitted that the detention order was not
sustainable, since the very object of the detention order had
H
SUBHASH POPATLAL DAVE v. UNION OF INDIA 621
[ALTAMAS KABIR, CJI.]
become stale and, therefore, redundant in the absence of any A
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 B
judgment and order dated 31.1.2011, passed by the Bombay
High Court in Criminal Writ Petition No. 3233 of 2010,
challenging the validity of the detention order No. PSA-1206/
2/Spl-3(A) dated 21.8.2006, passed under Section 3(1) of
COFEPOSA Act, 1974. The grounds of challenge in the Writ C
Petition are the same as those urged in the earlier matters, to
which reference has also. been made by the learned Judges
of the Bombay High Court. One of the questions of law, which
had been raised, is whether under the Right to Information Act,
2005, the Petitioner was entitled to copies of the detention order D
before its execution, which question was negated in the
judgment and order dated 10.7.2012.
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 E
Misc. Application No. 18497 of 2011 filed in the said Writ
Petition. In the Writ Petition before the High Court, the
Petitioners challenged a detention order dated 7.10.2004,
passed under Section 3(1) of COFEPOSA Act, 1974. The
High Court, while considering the said Writ Petition and
F
Criminal Miscellaneous Application, took note of the fact that
the Petitioners had challenged the detention order in a previous
Writ Petition, being W.P. (Crl.) No. 566 of 2005, which was
dismissed by a Division Bench of the Delhi High Court on
2.1.2007. It was also noticed that after the dismissal of the Writ
Petition, the judgment of the Division Bench was challenged in G
S.L.P.(Crl.) No. 3132 of 2007, which was also dismissed on
10.7.2007. It was- also noticed that the second Petitioner,
namely, the proposed detenue, Rajeev Verma, was residing in
the United States and was represented by his learned
Advocate, Mr. Nikhil Jain. On behalf of the Shri Rajeev Verma, H
622 SUPREME COURT REPORTS [2013) 17 S.C.R.
A the detention order has now been challenged in these Special
Leave Petitions on grounds which are similar to the grounds
taken in the earlier matters, namel'.)(, that seven ye;us had
passed since the detention order had been issued for a limited
period of one year. The order was also challenged on the ground
B that the High Court had failed to appreciate the fact that an order
of preventive detention is not to punish the detenue for having
committed an offence but to prevent him from doing so. It was
submitted that the cause of action for challenge of the detention
order at this stage was on grounds which were totally different
c from those taken in the Writ Petition before the High Court.
Reliance was placed on several decisions of this Court in
Maqsood Yusuf Merchant (supra), Yusuf Razak Dhanani Vs.
Union of India [W.P.(Crl.) No. 132 of 2007) and Sanjeev Jain
Vs. Union of India [Crl. Appeal No. 1060 of 2010, wherein the
detention 1orders were quashed on account of absence of any
0
live link between the detention order and the attempt now being
made to detain the proposed detenues cm the basis of the
same order, without any fresh material to indicate that after the
passing of the detention order the proposed detenues had
E indulged in acts, which were similar to those indicated in the
detention order.
14. Transfer Petition (Crl.) Nos. 38-39 of 2013 have been
filed by one Vijay Ram Silas Gupta, against whom a detention
order, being No. PSA- 12111CR-21 (1 )ISPL-3(A), was passed
on 23.1.2012. Prior to the passing of the detention order, the
F Petitioner had filed an application for settlement of the case
arising out of the Show Cause notice dated 13.12.2011, which
was allowed by the Settlement Commission, Customs and
Central Excise, Additional Bench, Mumbai on 29.3.2012, and
the case was settled. While settling the case, the Settlement
G Commission granted the Petitioner immunity from prosecution
under the Customs Act, 1962. The Writ Petition filed by the
Petitioner challenging the detention order, being W.P.(Crl.) No.
48 of 2012, was disposed of by this Court on 4.4.2012, with
leave to the Petitioner to approach the High Court for
H appropriate relief, if any.
SUBHASH POPATLAL DAVE v. UNION OF INDIA 623
[ALTAMAS KABIR, CJI.]
15. Pursuant to the leave granted by this Court, on A
14.4.2012, the Petitioner filed Criminal Writ Petition No. 1502
of 2012, before the Bombay High Court, praying for quashing
and setting aside the impugned order of detention dated
23.1.2012, in view of the settlement of the case on payment of
the admitted duty liability. In view of the settlement of the case, B
the Bombay High Court passed an ad interim order directing
the Respondents authorities not to take coercive action against
the Petitioner, till the next date. On 1~.6.2012, the Union of India
filed Writ Petition {Lodg) No. 1523 of 2012, before the Bombay
High Court, challenging the final order dated 29.3.2012, passed · C
by the Settlement Commission. The same is still pending.
During the pendency of the matter, this Court, by its interim
judgment dated 10.7.2012, held that the detention orders could
be challenged at the pre-execution stage even on grounds other
than the five exceptions indicated in Alka Subhash Gadia's
case (supra). Accordingly, the Petitioner prayed for transfer of D
the two pending Writ Petitions, before the Bombay High Court,
one filed by the Petitioner and the other by the Union of India,
to be heard along with the other matters, since the same
questions of law were involved .
E.
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 F
October and November, 2010, in respect whereof the Petitioner
was arrested on 2.11.2010 and enlarged on bail on 14.12.2010.
It was submitted, as in other cases, that there is nothing on
record to indicate that anything has been done by the Petitioner,
after the detention order was passed till date. The other relevant G
ground of challenge is that when the Settlement Commission
;,;{,der the Customs Act, 1962, had granted conditional immunity
under SuO:sectign (1 )_of Section 127H of the Customs Act,
there could be no further ground for either i~suing or continuing
with the detention order, which arises out of the facts inrespect--H
624 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 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.Vlll dated 8.9.2011, on the same grounds, as urged in
8
the other matters relating to delay in issuing the detention order
on stale grounds. It was also contended that the Detaining
Authority acted merely as a rubber stamp of the Sponsoring
Authority, without applying its mind independently. It was further
urged that, as in other matters, the Sponsoring Authority took
C recourse to an order of preventive detention, without taking
recourse to the ordinary laws of the land available for
prosecution of offences referred to in the detention order.
18. Writ Petition (Crl.) No. 249 of 2011 filed by Manju R.
D Agarwal was in respect of her husband, Rajesh Kumar
Agarwal, against whom detention order No. PSA-1210/CR-60/
SPL-3(A) had been passed on 23.12.2010, in terms of Section
3(1) of COFEPOSA Act, 1974. The facts of this case are no
different from the facts in Transfer Petition (Crl.) Nos. 38-39 of
E 2013. As in the said Transfer Petitions, in the instant case, on
the same set of accusations, the detenue was arrested on
2.3.2010 and was, thereafter, released on bail by the Sessions
Court on 5.4.2010. Thereafter, the proposed detenue, along
with others, approached the Settlement Commission for
F settlement of the disputes in respect of the show cause notices
issued to them in the manner contemplated under Sections
127-A to 127-M of the Customs Act, 1962. By an order dated
17 .10.2011, the Settlement Commission allowed the
applications to be proceeded with and while imposing penalty
upon the proposed detenue under Sections 112-A and 114-F
G of the Customs Act, 1962, granted full immunity to Shri Rajesh
Kumar Agarwal from payment of penalty as well as complete
immunity from prosecution under the Customs Act.
19. It was urged that the detention order has lost its
H significance and relevance in view of the immunity from
SUBHASH POPATLAL DAVE v. UNION OF INDIA 625
[ALTAMAS KABIR, CJI.]
prosecution granted by the Settlement Commission under Sub- A
section (1) of Section 127-H of the said Act.
20. The last of this batch of matters, which wa$ heard
together, is Writ Petition (Crl.) No. 220 of 2011, filed by one
Kamlesh N. Shah, the.father of the proposed detenue, Bhavik B
Kamlesh Shah, against whom Detention Order No. PSA-1211/
CR-18/SPL-3(A) was passed on 16.9.2011, under Section 3(1)
of COFEPOSA Act, 1974. The grounds of challenge to the
detention order are a little different from those which had been
taken in the earlier matters. In the present case, apart from the C .
grounds of delay, it has been indicated that on 7.12.2010, the
proposed detenue had been taken into custody and was shown
to be formally arrested on 9.12.2010, by the Director of
Revenue Intelligence, Mumbai. On 3.2.2011, he was granted
bail by the Court of Sessions and, while the matter was
pending, the impugned detention order was passed on D
16.9.2011, after a lapse of more than nine months from the date
of his arrest. The Petitioner has also taken a ground that certain
vital and material documents, as indicated in Ground A of the
Petition, had not been placed before the Detaining Authority,
as a result of which the detention order stood vitiated on the E
ground of non-application of mind. Reference was made to the
several decisions of this Court in Asha Devi Vs. K. Shivraj
((1979) 1 SCC 222]; State of U.P. Vs. Kamal Kishore Saini
[(1988) 1 SCC 287]; and Ayya alias Ayub Vs. State of U.P.
((1989) 1 sec 374], and several other cases, where this Court F
had quashed the orders of detention, when relevant documents
which could have had a direct bearing on the detention order,
had not been placed before the Detaining Authority. It was
urged that, in the instant case, the retraction of the detenue on
various dates was not placed before the Detaining Authority, G
which not only prejudiced the detenue, but also resulted in the
illegal order of preventive detention being passed against him.
21. Responding to Mr. Mukul Rohatgi's submissions as
also the submissions made by the other learned counsel, the
H '
626 SUPREME COURT REPORTS [2013] 17 .S.C.R.
A learned Additional Solicitor General, Mr. P .P. Malhotra,
submitted that although the matter as far as challenge to
detention orders at the pre-detention stage on grounds other
than those categorized in Alka Subhash Gadia's case, had •
been considered earlier on 10th July, 2012, the Court was of
B the view that the matter required further consideration. In that
context, the learned Additional Solicitor General repeated his
earlier submissions, with particular reference to the decision
of this Court in Sayed Taher Bawamiya's case (supra) and
Atam Prakash's case (supra), wherein it had been held that a
c detention order could be challenged at the pre-execution stage
but only with regard to the five exceptions carved out in Alka
Subhash Gadia's case (supra).
22. In addition, Mr. Malhotra submitted that the delay in
execution of the order of detention was mostly on account of
D the fact that the proposed detenue had absconded either just
before or after the passing of the detention order, thereby
making execution difficult, or at times impossible, but, as was
held in the case of Union of India Vs. Maj. Gen. Madan Lal
Yadav [(1996) 4 SCC 127], a detention order which had been'
E validly passed by the concerned authority cannot be rendered
invalid in view of the fact that the proposed detenue had
absconded and was evading arrest. It was indicated that the
proposed detenue should urider no circumstan1:es be allowed
to take the benefit of his own wrong. Mr. Malhotra submitted
F that the same principle had alst!I been followed by this Court in
Dropti Devi Vs. Union of India [(2012) 7 SCC 499], where it
·was found that the order of detention had been passed as far
back as on 23rd September, 2009, and though the order was
preventive in nature and the maximum period of detention was
G 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
H
·'
SUBHASH POPATLAL DAVE v. UNION OF INDIA 627
[ALTAMAS KABIR, CJI.]
in Saeed Zakir Hussain Malik Vs. State of Maharashtra A
((2012) 8 sec 233). no hard and fast rule can be laid down
on the question of delay and it will depend on the facts of each
case. The learned ASG referred to the decision of this Court
in Bhawarlal Ganeshmalji Vs. State of Tamil Nadu [(1979) 1
sec 465), wherein it had been urged that the detention order B
was liable to be quashed on the ground of delay since it had
been passed in 2009 and had not been executed till that date.
Mr. Malhotra pointed out that this Court held that while it is true
that the purpose of detention under the COFEPOSA Act is not
punitive but preventive and that there must be a live and c
proximate link between the grounds of detention alleged by the
Detaining Authority and the purpose of detention, and that in
appropriate cases it may be as'sumed that the live link is
snapped, one may strike down an order of detention, but where
the delay is found to be on ac9ount of the recalcitrant conduct
D
of the detenue in evading arrest, it may be considered that the
link had not snapped, but had been strengthened. In th~ said
case, the detenue was found to be absconding and action was
accordingly taken under Section 7 of the COFEPOSA Act and
he was declared to be a proclaimed offender. Despite the·
several efforts made to apprehend the proposed detenue. he E
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 F
categorically observed that it would strengthen the link.
24. Mr. Malhotra also referred to the decisions of this Gou.rt
in Union of India Vs. Amrit Lal Manchanda ((2004) 3 SCC 75]
as also in M.Ahamedkutty Vs. Union of India ((1990) 2 SCC. G
1], wherein it had also been objarved that where the passage
of time is caused by the detenue himself by absconding, the.
satisfaction of the Detaining Authority cannot be doubted and
the detention order cannot be held to be bad on that ground.
Mr. Malhotra urged that in Union of India Vs. Arvind Shergil/ H
-
628 SUPREME COURT REPORTS (2013] 17 S.C.R.
A [(2000) 7 SCC 601), this Court looked into the continued
validity of a detention order after a passage of 13 years. This
Court came to the conclusion that since the proposed detenue
was himself instrumental in causing the inordinate delay, he
could not challenge the order of detention on the ground of
B delay. Reference was also made to the decisions of this Court
in Vinod K. Chawla Vs. Union of India ((2006) 7 SCC 337],
Hare Ram Pandey Vs. State of Bihar ((2004) 3 SCC 289),
Naresh Kumar Goyal Vs. Union of India ((2005) 8 SCC 276]
and Subhash Muljimal Gandhi Vs. L,. Himingliana [(1994) 6
c sec 14], wherein in common it had been held that the delay
in executing the order of detention could not be taken as a
ground for quashing of the detention order, where such delay
was occasioned by the detenue himself.
25. Mr. Malhotra submitted that in all of the aforesaid
D 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,
E 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
F 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
G 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
H issued under Section 4 of the Act and the said warrant
SUBHASH POPATLAL DAVE v. UNION OF INDIA 629
[ALTAMAS KABIR, CJI.)
continues to be in force unless the same is executed, withdrawn A
or cancelled. Once a valid warrant had been issued, it cciuld
not be taken as a ground to quash the detention order simply
because the detenue had been successful in evading arrest or
detention. The learned ASG, therefore, prayed that the Writ
Petitions filed by the Petitioners, as also the Appeals and the B
Transfer Petitions, were liable to be dismissed.
27. Out of the 11 matters i'leard together, detention orders
had been passed by the State of Maharashtra, under delegated
powers, in six matters. Dealing with each case on its own merit, C
Mr. B.H. Marlapalle, learned Senior Advocate, who appeared
on behalf of the State of Maharashtra in all the matters,
submitted that in Nitish Prakashchand Kothari's case
[W.P.(Crl) No. 138 of 2011), the detention order had been
passed under Section 3(1) of the· COFEPOSA Act, 1974, but
the same was not executed till the Petitioner himself D
approached this Court. It was submitted that action under
Section 7(1 )(b) of the COFEPOSA Act was taken by the
Detaining Authority on 27 .1.2010, and an arrest warrant was
also issued against him. Mr. Marlapalle submitted that the
Petitioner had relied on !he revocation of the detention order E
passed against co-accused, Shri Tarun Popatlal Kothari,
against whom an order of detention was also passed
simultaneously on 3.12.2009, on the basis of a common
proposal. However, the said detention order was revoked on
the views expressed by the Advisory Board. Mr. Marlapalle F
urged that the proposed detenue was claiming parity with the
O(der passed in Shri Tarun Popatlal Kothari's case and that he
had not been absconding, which caused the detention order
to become stale. Mr. Marlapale submitted that the Petitioner
had also claimed that he had not indulged in any prejudicial G
activity during the said intervening period. Furthermore, his
case could not be placed before the Advisory Board and, there
was no occasion, therefore, for the Board to record its opinion
in this case. Despite the above, Mr. Marlapalle submitted that
since the Petitioner did not choose to challenge the detention H
630 SUPREME COURT REPORTS (2013] 17 S.C.R.
A order for about two years, his Petition deserves to be
9ismissed.
28. With regard to Suresh Kumar Ukchand Jain's case
(S.L.P. (Crl.) No. 1938 of 2011 (now Appeal)], the detention
B order was passed on 21.8.2006, under Section 3(1) of the
COFEPOSA Act, and the said order could not also be
executed. Mr. Marlapalle submitted that although the detention
order had been passed in 2006, it came to be challenged for
the first time before the Bombay High Court in Criminal Writ
Petition No. 3233 of 2010, and was dismissed on 31.1.2011.
C Mr. Marlapalle submitted that in this matter the main ground of
challenge to the detention order was the ground of delay, which
caused the order of detention to become stale. Responding to
Mr.'Rohatgi's submissions, Mr. Marlapalle contended that the
delay in execution of the detention order was partly on account
D · of the authorities themselves, since in the affidavit filed by the
Detaining Authority before the High Court, it was iridicated that
the detention order had been passed on 21.8.2006, but was
received in the Office of the Commissioner of Police on
6.4.2007, and was received, in turn, by Vashi Police Station on
E 20.4.2007. Mr. Marlapalle submitted that when an attempt was
made to serve the detention order on the Appellant at his
permanent address on 30.5.2007, the Appellant was reported
not to be living at the address given and the occupant of the
room, one Neena Modi, informed the police officer concerned
F' that the detenue was not staying at the said address and that
the Appellant had given five different addresses, but the address
at Vashi, Navi Mumbai had not been furnished. However, Mr.
Marlapalle accepted the fact that there is no explanation
provided as to why the detention order could not be executed
G by taking recourse to Section 7 of the COFEPOSA Act, 1974,
or why steps were not taken to declare the Appellant as an
a~sconder from 9.7.2007, till he approached the High Court in
Writ Petition No. 3233 of·2010.
29. In the third case, which is S.L.P.(Crl.) No. 1909 of 2011
H
SUBHASH POPATLAL DAVE v. UNION OF INDIA 631
[ALTAMAS KABIR, CJI.]
(now Appeal), filed by one Anil Kailash Jain, the detention order A
was passed on 13.12.2007, on the ground of duty evasion. Mr.
Marlapalle submitted that a joint proposal had been zubmitted
for the preventive detention of 13 persons including the
Appellant, and orders were passed accordingly. However, while
the detention orders against the co-accused individually were B
executed, in the Appellant's case, the same could not be
executed. Subsequently, orders were passed under Section
7(1)(b) of the COFEPOSA Act and a report under Section
7(1 )(a) of the said Act was submitted to the Judicial Magistrate,
First Class, New Delhi. Mr. Marlapalle submitted that the c
Appellant filed Criminal Writ Petition No. 2675 of 2010, at the
pre-execution stage, and the same was dismissed by the
Bombay High Court on 5.1.2011, on the basis of the decision
in Alka Subhash Gadia's case.
30. In W.P. (Crl.) No. 220 of 2011, filed by Kamlesh N. D
Shah, the detention order had been passed under Section 3( 1)
of the COFEPOSA Act, 1974, on 16.9.2011, in regard to
Bhavik Shah, the proposed detenue. The proposed detenue,
who is the son of the Petitioner, was alleged to be a havala
operator, who had allegedly evaded customs duty to the tune E
of Rs. 3 crores. Mr. Marlapalle submitted that despite efforts
to serve the detention order, the same could not be served as
the proposed detenue remained untraceable. Summons to the
detenue were also issued by the Sponsoring Authoritfand
S(:lrved on the family members of the detenue. On his failure to F
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 G
before the Additional Chief Metropolitan Magistrate on
31.5.2011, without copies of the same being served on the
prosecutor of the departmental representative. Mr. Marlapalle
submitted that it is obvious that the Petitioner had knowledge
of the detention order before be applied for bail and the H
.i .
632 SUPREME COURT REPORTS [2013] 17 S.C.R.
'
A retractions were made thereafter. Mr. Marlapalle submitted lhat-
the retractions, which were sent by post, were only for the
purposes of challenging the detention order, when it was
passed.
8
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
C submitted that tliis is one of those cases in which 'the proposed
detenue had approached the Settlement Commission under
Section '127H of the Customs Act, 1962 and a settlement had
been arrived at and the Settlement Commission had granted
immunity from prosecution under the. Customs Act to the
D Petitioner and the co-accused. It is on that basis that a
representation was made on 11.11.2011 for revocation C1l the
.. detention order dated 23.12.2010. Mr. Marlapalle submitted that
'·it is not known as to whether the said representation was
decided or not. No submission was made by Mr. Marlapalle
E on the issue as to whether the detention order was sustainable
after the Settlement Commission had granted immunity from
prosecution under the Customs Act, 1962.
32. Writ Petition (Crl.) No. 35 of 2011 and S.L.P. (Crl.) No.
F 2442 'of 2012 (now Appeal), have been filed challenging the
detention order passed under Section 3(1) of the COFEPOSA
..Act on 12.3.2001. Although, the petition has been filed by one
Shri Suresh D. Hotwani, the name of the proposed detenue is
Nitesh Ashok Sadarangani. The main ground of challenge is
G that the detention order had become stale since it could not be
executed for 'nine years. Mr. Marlapalle urged that the Writ
Petition was a duplication of the relief prayed for in the Special
Leave Petition and was not, therefore, maintainable. Mr.
Marlapalle submitted that the detention order had earlier been
challenged by the Petitioner before the Bombay High Court in
H
SUBHASH POPATLAL DAVE v. UNION OF INDIA 633
[ALTAMAS KABIR, CJJ.]
Criminal Writ Pet~ion No. 1645 of 2010. The Writ Petition was A
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 B
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, C
as he remained absconding despite the steps taken to_ declare
him as an absconder under Sections 7(1 )(a) and 7(1)(b) of the
COFEPOSA Act. Mr. Marlapalle submitted that the question of
snapping of live link was not available to the Petitioners having
regard to the fact that the same was not a ground which came
within -the five exceptions in Alka Subhash Gadia's case. Mr. D
Marlapalle repeated that the passage of time between the
passing of the detention order and the challenge thrown thereto
could not, by itSelf, be a reason to hold that the detention order
had become stale. Whether the detention order had become
stale or not was required to be examined in the circumstances E
of each case and, in any event, the proposed detenue could
n9t take advantage of his own wrong by evading the detention
order arid then ch~llenging the same on the ground of delay.
34. Mr. Marlapalle urged that in Hare Ram Pandey (supra), F
.there was a delay of nine yea~. but it was held that such delay, .
·in itself, was insufficient to hold that the detention order had
become stale. Learned counsel also referred to the other
decisions in Alka Subhash Gadia. (supra), Subhash Muljimal
qandhi (supra), Naresh Kumar Goyal (supra) and aJso State G
of Maharashtra Vs. Bhavrao Gawanda ((2008) 3 SCC 613],
in which the delay ranged between four years and seven years,
but it was held by this Court that such a ground was inadequate
as the proposed detenue, having absconded, could not,
thereafter, asked for the protection of the law.,
H
634 SUPREME COURT REPORTS [2013] 17, S.C.R.
A 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.
B
- '
36. In addition to the above, Mr. Marlapalle drew the Courts'
attention to Section 5A of the National Security Act, 1980,
hereinaft~r referred to as "NSAAct, 1980", which provides that
the grounds of detention are severable .on certain defined
C grounds so as not to affect the validity of the detention order
as a whole. Reference was also made to Section 7 of the Act
which empowers the Central Government to pass appropriate
orders in relation to absconding persons, which are in pari
materia with the provisions of Section 7(1 )(b) of the
COFEPOSA Act, 1974.
D
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/
E Appellants may be encapsulated in the following manner:
(i) That, the detention orders passed in respect of the
several proposed detenues were challenged at the
pre-detention stage, on grounds other than those
indicated in Atka Subhash Gadia's case (supra),
F and that the five exceptions carved out in Atka
Subhash Gadia's case were illustrative and not
exhaustive.
(ii) Whether any live link could be said to exist between
G the order of detention and the object sought to be
achieved by treating the detention order as valid
after the passage of several years ranging from
three to sixteen years, during which period there is
no record of the proposed detenue having
undertaken any activities similar to the ones
H
SUBHASH POPATLAL DAVE v. UNION OF INDIA 6~5
[ALTAMAS KABIR, CJI.]
..'
indicated in the detention ordei? In the absence of A
any live link, can the detention order survive?
(iii) Whether having absconded or evaded the
execution of the detention order,..the proposed
detenue could take advantage of such fac~ and
B
challenge the detention order, which remains
unexecuted?
(iv) Once the Settlement Commission under the
Customs Act accepts a settlement and provides
complete immunity from prosecution under Section c
127H of the Customs Act, could the detention order
be passed or proceeded with?
(v) Whether, when the ordinary law of the land is
available, orders of preventive detention can be D
passed?
(vi) Whether the provisi.ons of Section 7 of the
COFEPOSA Act, 1974, and Section 7 of the
National Security Act, 1980, can be made the basis
for m!tking an order of preventive detention? E
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 .F
decision in Sayed Taher Bawamiya's case could not be
accepted. We had indicated that it was not the intention of the ·
Hon'ble Judges in Alka Subhash Gadia's case to confine the
challenge at the pre-execution stage only to the five exceptions
mentioned therein, as that would amount to stifling and G
imposing restrictions on the powers of judicial review vested
in the High Courts and the Supreme Court under Articles 226
and 32 of the Constitution. After considering other decisions
delivered on the aforesaid proposition, after the decision in
Alka Subhash Gadia's case, we had also held that the exercise H
636 SUPREME COURT REPORTS (20131 J7 S.C.R.
.A of powers vested in the superior Courts in judicially reviewing
executive decisions and orders cannot be subjected to any
restrictions, as such powers are untrammelled and vested in
the superior Courts to protect all citizens and non-citizens,
against arbitrary action. As submitted by Mr. Rohatgi at the very
B beginning of his submissions.. we had indlcated· that law is
never static, but dynamic and that the right to freedom being
one of the most precious rights of a citizen, the same could not
be interfered with as a matter of course and even if it is in the
public interest, such powers would have to be exercised with
c extra caution and not as an alternative to the ordinary laws of
the land.
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
D 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
E propensities should be prevented from indulging in the same
to the prejudice of the public at large and from also indulging
in economic offences against the Revenue, it would have to be
established that the intention with which the preventive detention
-0rder had been passed continued to subsist so that the same -
F could be executed even at a later date. In none of the instant
cases, have the Sponsoring Authorities or .the Detaining
Authorities been able to establish that after the passing of the
detention order the proposed detenues had continued with their
activities, as enumerated in the detention orders, which would
G 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
H the proposed detenue had, in the meantime, continued his anti-
SUBHASH POPATLAL DAVE v. UNION OF INDIA 637
[ALTAMAS KABIR, CJI.]
social activities, it h_as to be held that the detention orders in A
respect of such proposed detenues were no longer relevant and
must be quashed.
41. As far as the fourth _ground is co_ncerned, one has tO
bear in the mind that the provision of the Customs Act and other
8
Revenue laws are mainly aimed at recovery of dues and
penalties, payment whereof had been avoided and it is such
manner of thinking which resulted in the amendment of the
Customs Act, 1962, by the inclusion of Chapter XIVA, by Act
21 of 1998. Chapter XIVA relates to settlement of cases and
contains Sections 127A to 127N. Section 1278 empowers any C
importer, exporter or any other person to make an application
in respect of a case pertaining to him, to the Settlement
Commission, to have the case settled. The Settlement
Commission has been given powers to reopen completed
proceedings and, thereafter, allow the said applications under D
Section 127F. In addition, the Settlement Commission has
been empowered under Section 127H to grant immunity from
prosecution and penalty. Section 127M lays down that any
proceeding under Chapter XIVA before the Settlement
Commission would be deemed to be a judicial proceeding, E
within the meaning of Sections 193 and 228 of tbe Customs
Act, 1962 and also for the purposes· of Section 196 of the Indian
- Penal Code.
42. Clearly, the object with which the said provisions had F
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 G
considering the matter from its various angleir, _Once such
immunity from criminal prosecution is granted, the question of
preventive detention for the same cause of action loses its
relevance, unless the proposed detenue under the provisions
H
638 SUPREME COURT REPORTS [2013] 17 S.C.R.
A of the COFEPOSA Act, 1974, or any other ancillary provisions,
is involved in fresh transgression of the law.
43. At this stage, I may take notice of the provisions of
Sections 6 and 7 of the COFEPOSA Act, 1974. Section 6 of
B the said Act provides as follows:
"6. Detention order not to be invalid or inoperative on
certain grounds - No detention order shall be invalid or
inoperative merely by reason -
c (a} That the person to be detained thereunder is outside
the limits of the territorial jurisdiction of the Government or
the officer making the order of detention, or
(b) That the place of detention of such person is outside
the said limits."
D
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
E with the powers of the Government in relation to absconding
persons. Since the same is of considerable relevance to the
facts of this case, being one of the main grounds on which the
orders of detention have been challenged, the same is also
reproduced hereinbelow:
F
"7. Powers in relation to absconding persons - (1) If
the appropriate Government has reason to believe that a
person in respect of whom a detention order has been
' has absconded or is concealing himself so that the
made
order cannot be executed, the Government may-
G
(a) make a report in writing of the fact to a
Metropolitan Magistrate or a Magistrate of the first
class having jurisdiction in the place where the said
person ordinarily resides ; and thereupon the
H provisions of sections 82, 83, 84 & 85 of the Code
SUBHASH POPATLAL DAVE v. UNION OF INDIA 639
[ALTAMAS KABIR, CJI.]
of Criminal Procedure, 1973 (2of1974), shall apply A
in respect of the said person and his property as if
the order directing that he be detained were a
warrant issued by the Magistrate ;
(b) by order notified in the Official Gazette direct the
8
said person to appear before such officer, at such
place and within such period as may be specified
in the order ; and if the said person fails to comply
with such direction, he shall, unless he proves that
it was not possible for him to comply therewith and
that he had, within the period specified in the order, C
informed the officer mentioned in the order of the
reason which rendered compliance therewith
impossible and of his whereabouts, be punishable
with imprisonment for a term which may extend to
one year or with fine or with both. D
(2) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974), every
offence under clause (b) of subsection (1) shall be
cognizable." E
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 F
provisions of Sections 82, 83, 84 and 85 of the Code of
Criminal Procedure and his property, as if the order directing
him that he be detained were a warrant issued by the
Magistrate. Section 7(1 )(b) also provides for penal
consequences, in the event directions given thereunder, are not G'
complied with by the proposed detenue.
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 H
640 SUPREME COURT REPORTS [2013] 17 S.C.R.
A directing the person concerned to appear before the concerned
officer and. on the detenue's failure to do so, to inflict punishment
with imprisonment for a term which could extend to one year
or i,yith fine or both.
47. The provisions of Sections 6 and 7 of the National
8
Security Act, 1980, are identical to the provisions of Sections
6 and 7 of the COFEPOSA Act, 1974.
48. In my view, the said provisions clearly enumerate the
powers vested in the Authorities when a proposed detenue
C absconds. That, in my view, is the ordinary law of the land, and
not preventive detention, which is meant to prevent the
commission of offences, and not to punish an individual for
violatio,n of statutory provisions. Accordingly, in my view, the
submissions made on behalf. of the Union of India and the State
D of Maharashtra, cannot be accepted and absconsion cannot,
therefor~. be made a ground for making an order of preventive
detention. Neither in Dropti Devi's case (supra) nor in Amrit Lal
Manchanda's ca~e or in M. Ahamedkutty's case had the above-
mentioned provisions been broµght to the notice of the learned
E Judges who heard the matters, but had no occasion to consider
the same. -
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
F 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
G 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
H to preventive detention with great care and caution to ensure
SUBHASH POPATLAL DAVE v. UNION OF INDIA 641
[ALTAMAS KABIR, CJI.]
that the provision was not misused by the Investigating A
Authorities as an easy alternative to proper investigation .
. Normally, the life of a preventive detention order is one year.
Such a period is intended to give the deteni.le, who is detained
without any trial, an opportunity to introspect and reflect into his
. past deeds, and to dissuade him from indulging in the same -B
ir] future. In other words, ~he period of detention is intended not
' to punish the detenue, but to make him realize the impact of
his earlier indiscretions on society and to discontinue the same.
50. Both, the Revenue, as also the police authorities, C
appear to be myopic in regard to the. dividing line between
preventive detention and arrest for a crime actually committed.
On account of the above, .the State and its authoriti.es have
attempted to justify the continuance of the! validity of detention
orders even after the lapse of several years after the passing
of the detention order, citing principles such as a person cannot· D
take 'advantage of his own wrong, in support thereof. Learned
counsel for the respondent authorities have fused the two
principles together in dealing with the question of preventive
detention. A person evading service of an order of preventive
detention cannot, in my view, be treated with the same yard- E
stick as a person, accused of having committed a criminal
offence and evading arrest to thwart the criminal process
initiated against him. The two principles stand on different
footings. In the first place, the proposed detenue is detained
Without being made an accused in connection with any F
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 G
unexecuted for several years becomes open to question
regarding its executability. If the intention of the authorities in
passing a detention order is to prevent the commission of an
offence by the proposed detenue in the future, then after the
passage of a number of years, the concerned authorities will H
'I
642 SUPREME COURT REPORTS (2013) 17 S.C.R.
A have to consider whether the order of preventive detention
should at all be executed in the absence of any information that
the proposed detenue had continued with unlawful activities.
When the object of a preventive detention order is to prevent
the proposed detenue from committing any offence, which is
B either against the national interest or the interest of society in
the future and there is nothing on record to indicate that the
proposed detenue had indulged in any such activity after the
order of preventive detention was passed, it would, in my view,
be illogical to pursue the execution of the detention order as
c the arrest and detention of the proposed detenue would
become irrelevant and would not achieve the object for which
it had been passed.
·51. The decisions cited by Mr. Malhotra and Mr.
Marlapalle, and in particular in Dropti Devi's case (supra), do
D 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
E 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,
F 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
G to the question regarding the validity of the detention order, and
in the process appears to have missed the main issue
regarding the difference between an order of preventive
detention and the issuance of a Warrant of Arrest against a
person in connection with a particular offence.
H
SUBHASH POPATLAL DAVE v. UNION OF INDIA 643
[ALTAMAS KABIR, CJI.]
52. Accordingly, after taking into account the submissions A
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 B
detention order on grounds other than the five grounds
enumerated in Alka Subhash Gadia's case(supra). I am also
inclined to hold that orders of detention must not, as a matter
of course, be read as an alternative to the ordinary laws of the
land to avoid the rigours of investigation in order to make out c
a case for prosecution against the proposed detenue. I also
hold that if a dispute leading to the issuance of the detention
order is settled on the basis of a statutory provision such as
Chapter XIVA of the Customs Act, 1962 and in terms of the
Statute immunity from prosecution under Section 127H of the
0
Act is given, the continuance of the order of detention would
be completely illogical and even redundant. Accordingly, in such
cases, the orders of preventive detention are liable to be
quashed along with the Warrants of Arrest and Proclamation
and Attachment issued under Sections 82 and 83 of the Code
of Criminal Procedure. E
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 F
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 G
in activities which form the basis of the preventive detention
orders. The following matters include Appeals arising out of the
Special Leave Petitions and Writ Petitions either filed by the
detenues themselves or their agents:
H
644 SUPREME COURT REPORTS [2013) 17 S.C.R.
A (i) Writ Petition ·(C'rl.) No.· 137 of 2011, filed by
Subhash Popatlal Dave.
(ii) Writ Petition (Crl.) No. 35 of 2011, filed by Suresh
D. Hotwani.
B (iii) Writ Petition (Crl.) No. 138 of 2011, filed by Nitin
Prakashchand Kothari. ·
(iv) Writ Petition (Crl.) No. 249 of 2011, filed by Manju
R. Agarwal, wife of proposed detenue, Rajesh
Kumar Agarwal.
c
. (v) Criminal Appeal @ SLP (Crl.) No. 1909 of 2011,
filetl by Anil Kailash Jain.
(vi) Criminal Appeal @SLP(Crl.) No. 1938 of 2011,
filed by Sureshkumar Ukchand Jain.
D
(vii) Criminal Appeals @ SLP (Crl.) Nos. 2091-2092,
filep by Rajesh Verma.
54. However, the Transferred Cases @ Transfer Petition
(Crl.) Nos. 38-39 of 2013, filed by Vijay Ram Bilas Gupta, Writ
E Petition (Crl.) No. 220 of 2011, filed by Kamlesh N. Shah and
Writ Petition (Crl.) No. 14 of 2012, filed by Mohan Lal Arora
are, in my judgment, pre-mature and are disallowed at this
stage.
F 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
G against Nitesh Ashok Sadarangani on 12.3.2001. Since the
said detention order is being quashed in Writ Petition (Crl.) No.
35 of 2011, also filed by the Petitioner directly against the
detention order, the order of the High Court impugned in the
Special Leave Petition has necessarily to be set aside also.
H Criminal Appeal @ S.L.P.(Crl.) No. 2442 of 2012 is,
SUBHASH POPATLAL DAVE v. UNION OF INDIA 645
•
accordingly, allowed and the order of the High Court impugned A
therein is set aside.
GYAN SUDHA MISRA, J. 1. Having deliberated over the
arguments advanced by learned counsel for the contesting
parties in the light of the ratio of the authoritative B
pronouncements of this Court referred to hereinafter on the
issue involved herein which also includes a Constitution Bench
judgment, I have not been able to persuade myself to accept
the position that the Writ Petitions, Appeals and Transfer Cases
under consideration are fit to be allowed.
c
2. A common question initially arose in all these matters
as to whether detention order passed under the provisions of
the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act 1974 (shortly referred to as 'the
COFEPOSA Act 1974) could be challenged at the pre- D
execution stage confined to the five exceptions carved out by
this Court in the case of Addition.~1 Secretary to the Govt. of
· India And Ors. vs. Atka Subhash Gadia And Anr. 1992 Supp
(1) sec 496 or whether such challenge could be maintained
inter alia on other grounds. This Court (Bench) has already E
delivered a judgment on this question vide judgment and order
dated 10.07.2012 reported in (2012) 7 sec 533 that the right
of a proposed detenue to challenge a preventive detention
order passed against him may be challenged at the pre-
execution stage on grounds other than those set out in F
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
G
order of preventive detention can be challenged beyond the
five grounds which have been enumerated in the .case of Alka
Subhash Gadia's case even at the pre-execution stage.
3. However, the next important question that has cropped
up in all these petitions/appeals is as to whether the proposed H
646 SUPREME COURT REPORTS [2013] 17 S.C.R.
A detenues having absconded or evaded the execution of the
detention order, who subsequently challenged the order of his
detention even at the pre-execution stage after a long lapse of
time could take advantage of non-execution and challenge the
detention order which remained unexecuted. For the sake of
B brevity, I refrain from repeating the facts of each writ petition,
Appeals and transfer petition herein which have been
consolidated and heard as a batch, as they have already been
recorded in the judgment and order of Hon'ble the CJI Justice
Altamas Kabir.
c 4. Learned counsels representing the petitioners' cause
submitted, which again have been elaborately stated in the
judgment and order of the Hon'ble CJI, that if the detention
orders which were under challenge were no longer relevant and
had become otiose as it ceased to have a live link between
D the order of detention and the subsequent circumstances when
it loses its purpose, as also having regard to the fact that the
object of a detention order is not to punish its citizen for a crime
with which he has not been charged but to prevent him from
committing 5uch crime in future then, whether such order of
E 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
F 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
G before it was executed and consequently lost its efficacy and
purpose due to long lapse of time.
5. The life and duration of the order of preventive
detention is no doubt usually for a period of one year or the
period to the extent which may be extended. But if the order
H
SUBHASH POPATLAL DAVE v. UNION OF INDIA 647
[GYAN SUDHA MISRA, J.]
of preventive detention gets enmeshed into litigation by virtue A
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 B
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 C
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 D
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 E
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 F
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 G
detention is allowed to be challenged before the appropriate
court even at the pre-execution stage on any ground that may
be available to him except of course the materials which has
weighed with the authorities to pass the order of detention as
it is obvious that justifiability of the material cannot be gone into H
648 SUPREME COURT REPORTS [2013) 17 S.C.R.
A at t11e pre-execution stage since the order of detention and the
ground for such order is yet to be served on the proposed
detenue as the proposed detenue was absconding or evading
the execution of the order on him for one reason or the other.
7. It would be worthwhile to refer to some of the authorities
B
relied upon by the respondent- Union of India and the State of
Maharashtra which clearly addresses the issues on the point
involved herein. A judgment and order of the Constitution Bench
may be cited as the first and foremost authority on the issue
involved which is the matter of Sunil Fulchand Shah vs. Union
C of India, (2000) 3 SCC 409 wherein the Constitution Bench
observed that a person may try to abscond and thereafter take
a stand that period for which detention was directed is over
and, therefore, order of detention is infructuous. It was clearly
held that the same plea even if raised deserved to be rejected
D as without substance. It should all the more be so when the
detenu stalled the service of the order and/or detention in
custody by obtaining orders of the court. In fact, in Sayed
Taher Bawamiya vs. Govt. of India, (2000) 8 SCC 630, the
factual position shows that 16 years had elapsed yet this
E Court rejected the plea that the order had become stale.
8. These aspects were once again highlighted in Hare
Ram Pandey vs. State of Bihar & Ors., (2004) 3 SCC 289,
Union of India VS. Amrit Lal Manchanda & Anr., (2004) 3 sec
F 75 and Union of India vs. Vidya Bagaria (2004) 5 SCC 577.
In yet another matter of Union of India & Ors. vs. Atam
Parkash & Anr. (2009) 1 SCC 585, the detention order was
challenged at the pre-execution stage which remained pending
for long and the High Court had allowed the writ petition filed
by the respondents detenue therein and quashed the detention
G order restraining the appellants from enforcing the order. But,
this Court overruled it and held that the judgment of the High
Court was clearly unsustainable and hence was set aside. It
was further held therein that the question as to whether it would
be desirable to take the respondents (detenue) back to
H
SUBHASH POPATLAL DAVE v. UNION OF INDIA 649
[GYAN SUDHA MISRA, J.]
custody shall be taken by the Government within two months A
and appeal filed by the Union of India was allowed.
9. Similarly, in the case of Bhawarlal Ganeshma/ji vs.
State of Tamil Nadu And Anr. (1979) 1 SCC 465, the appellant
had evaded arrest and surrendered 3 years after making of 8
the order of detention but this Court had held that the order
was still effective if detenu himself were to be blamed for delay.
It is no doubt true that in this matter, the Court had further held
that the purpose of detention under the COFEPOSA is not
punitive but preventive and there must be a 'live and proximate C
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 D
recalcitrant or refractory conduct of the detenu in evading the
arrest, there is warrant to consider that the link is not snapped.
On the contrary, it could be strengthened and that was what
precisely happened in the said case.
E
10. In yet another case of Vinod K Chawla vs Union of
India & Ors., (2006) 7 SCC 337, this Court had occasion to
consider regarding the effect of delay in execution of the
detention order wherein their Lordships held that detenu
evaded arrest and absconded and in spite of best possible F
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 G
the detention invalid.
11. This Court's decision in Union of India vs. Parasmal
Rampuria, (1998) 8 SCC 402 also throws considerable light
as to what would be the proper course for a person to adopt
when he seeks to challenge an order of detention on the H
650 SUPREME COURT REPORTS [2013] 17 S.C.R.
A available grounds like delay in execution of detention order,
delay in consideration of the representation and the like and
while dealing with the impact of such situations on the order of
detention, it was observed therein that these questions were
really hypothetical in nature when the order of detention had
B not been executed at all and challenge is made at pre-
execution stage. Their Lordships relied upon and observed as
follows in paras 4 and 5 which is fit to be quoted herein for
facility of reference:-
"4. In our view, a very unusual order seems to have been
c passed in a pending appeal by the Division Bench of the
High Court. It is challenged by the Union of India in these
appeals. A detention order under Section 3(1) of the
COFEPOSA Act was passed by the authorities on
13.9 .1996 against the respondent. The respondent before
D 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
E 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
F 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
H detention order was the principal issue for consideration before
SUBHASH POPATLAL DAVE v. UNION OF INDIA 651
[GYAN SUDHA MISRA, J.]
the court. This Court held that the plea of delay taken by the A
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 B
was yet to be executed. This Court held that the grounds like
delay in execution of the order, delay in consideration of the
representation etc. are hypothetical in nature. Where a person
against whom detention order passed was absconding, plea
taken by him or on his behalf that the period for which detention c
was directed expired, deserved to be rejected. While
considering this question, it was held that although the nature
and object of the preventive detention order is anticipatory and
non-punitive in nature, object is to maintain public order and
security of State. This gives jurisdiction to curtail individual
0
liberty by passing the detention order. Order of detention is
passed on the basis of subjective satisfaction of detaining
authority.
13. The legal position was reiterated in the matter of Dropti
Devi and Anr. vs. Union of India & Ors., (2012) 7 SCC 499 E
wherein one of the questions which arose for consideration was
whether the detenue could be allowed to take advantage of his
own wrong on the plea that the maximum period of detention
prescribed having expired and the detenue in the said case
having failed to join investigation despite High Court's order F
would justify questioning of such order. This Court held that the
detenue could not take advantage of his own wrong and
challenge the detention order on the plea that the purpose of
execution of detention order no longer survived as maximum
statutory period of detention would have lapsed by then. G
14. From the ratio of the aforesaid authoritative
pronouncements of the Supreme Court which also includes a
Constitution Bench judgment having a bearing and impact on
the instant matters, the question which emerges is that if the
H
652 0Ur'REME COURT REPORTS [2013) 17 S.C.R.
A order of detention is allowed to be challenged on any ground
by not keeping it confined to the five conditions enumerated
in the case of Alka Subhash Gadia except the fact that there
had been sufficient materials and justification for passing the
order of detentio11 which could not be gone into for want of its
B execution, then whether it is open for the proposed detenue to
contend that there is no live link between the order of detention
and the purpose for which it had been issued at the relevant
time. In the light of ratio of the decisions referred to
hereinabove and the law on preventive detention, it is essentially
c the sufficiency of materials relied upon for passing the order
of detention which ought to weigh as to whether the order of
detention was fit to be quashed and set aside and merely the
length of time and liberty to challenge the same at the pre-
execution stage which obviated the execution of the order of
D 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
E the material relied upon by the detaining authorities in passing
the order of detention which legally is the most important aspect
of the matter but cannot be gone into by the Court as it has
been allowed to be challenged at the pre-execution stage when
the grounds of detention has not even been served on him.
15. Thus, if it is held that howsoever the grounds of
detention might be weighty and sustainable which persuaded
the authorities to pass the order of detention, the same is fit
to be quashed merely due to long lapse of time specially when
G the detenue is allowed to challenge the order of detention even
before the order of detention is served on him, he would clearly
be offered with a double-edged weapon to use to his
advantage circumventing the order of detention. On the one
hand, he can challenge the order of detention at the pre-
H execution stage on any ground, evade the detention in the
SUBHASH POPATLAL DAVE v. UNION OF INDIA 653
[GYAN SUDHA MISRA, J.]
process and subsequently would be allowed to raise the plea A
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 B
contrary, if the order of detention is allowed to be served on
the proposed detenue even at a later stage, it would be open
for the proposed detenue to confront the materials or
sufficiency of the material rl'!lied upon by the authorities for
passing the order of detention so as to contend that at the c
relevant time when the order of detention was passed, the
same was based on non-existent or unsustainable grounds so
as to quash the same. But to hold that the same is fit to be
quashed merely because the same could not be executed
for one reason or the other specially when the proposed 0
detenue was evading the detention order and indulging in forum
shopping, the laws of preventive detention would surely be
reduced into a hollow piece: of legislation which is surely not
the purpose and object of the Act.
16. Therefore, in my view, the order of detention is not fit E
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 F
whether the order of detention which wa~ passed at the
relevant time but could not be served was based on sufficient
material justifying the order of detention. Remedy to this
situation has already been offered by this Court in the matter
of Union of India Vs. Parasmal Rampuria, (Supra) viz. (1998) G
8 sec 402 wherein it was observed as under:
" the proper order which was required to be passed was
to call upon the Respondent first to surrender pursuant to
the detention order and then to have all his grievances
H
654 SUPREME COURT REPORT:? [2013] 17 S.C.R.
A examined on merits after he had an opportunity to study
the grounds of detention and to make his representation
against the said grounds as required by Article 22(5) of
the Constitution of India ....... "
17. The consequence that follows from the above is that
8
each individual/proposed detenue will have to be served with
the order of detention which had been passed against them
alongwith the grounds and the materials relied upon by the
authorities to pass the order of detention leaving it open to them
to challenge the correctness of the order by way of a
C representation before the appropriate Authority or Court as per
procedure prescribed. It is no doubt true that the materials
relied upon at the relevant time would be on the basis of which
the order of detention was passed so as to hold whether the
materials were sufficient and justified or not but when the
D correctness of the order of detention is challenged in a court
of law at the pre-execution stage, then setting aside the order
of detention merely on the ground of long lapse of time might
lead to grave consequences which would clearly clash with the
object and purpose of the preventive detention laws.
E
18. Therefore, I am of the view that since this Court has
already held that the order of detention can be challenged on
any ground beyond five conditions even at the pre-execution
stage, it is in the fitness of things that the materials relied upon
F 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
G against them so as to quash or sustain the same will have to
be considered by the Authority considering the representation
or the Court examining its sustainability. If the detenues have
not indulged in any illegal nefarious activities giving rise to any
economic offence, subsequently they have also not saddled
with a fresh order of detention. But when the order of detention
H
SUBHASH POPATLAL DAVE v. UNION OF INDIA 655
[GYAN SUDHA MISRA, J.]
of a specific date relating to the relevant period is under A
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 B
not possible to lose sight of the fact that if the petitioners and
the appellants had preferred not to challenge the order of
detent~on at the pre-execution stage or had not evaded arrest,
the grounds of detention would have been served on them
giving them a chance to challenge the same but if the petitioners c
and appellants have taken recourse to the legal remedy to
challenge the order of detention even before it was executed,
it is not open for them to contend that it should be quashed
because there is no live link between the existing/subsequent
situation and the previous situation when the order of detention
D
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
E
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 F
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 G
cannot be quashed and set aside merely due to long lapse
of time on the specious plea that there is no live link between
the order of detention and the subsequent situation. I am,
therefore, of the considered opinion that the order of detention
is not fit to be quashed merely due to long lapse of time H
656 SUPREME COURT REPORTS (2013] 17 S.C.R.
A specially when the orders of detention have been allowed to
be challenged even at the pre-execution stage on any ground.
It is, therefore, legally appropriate to serve the order of
detention on the proposed detenues leaving it open to them
to challenge the same after the grounds are served on them
B so as to appreciate whether there had been sufficient materials
before the detaining authorities to pass the orders of
detention which were existing at the relevant time and approve
or disapprove the same. In any view, events subsequent to
the passing of the order of detention is neither before us nor
c would be relevant at this stage while adjudging the correctness
and legality of the order of preventive detention when the said
orders were passed specially when this Court had no occasion
to peruse the materials which prompted them to pass the order
of preventive detention. In fact, there is no material before this
Court even to arrive at a definite finding as to whether the
0
proposed detenue have indulged in any activity after the
passing of the order of detention nor it is relevant in my view
to take into account the subsequent events while considering
the correctness of the order of detention passed at the relevant
time as the limited issue before this Court is whether the order
E of detention passed against the proposed detenues which
were challenged at the pre-execution stage is fit to be
quashed merely due to the passage of time. It would be
equally hypothetical to observe that in case the orders of
detention were served and approved by the Advisory Board
F and the same were challenged before the appropriate court,
whether it would have been open for the appropriate court to
consider the subsequent conduct of the proposed detenue in
order to hold that the order of detention was fit to be quashed.
Nevertheless, when the duty is cast upon this Court at this
G 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
H view to hold that the order of detention is fit to be quashed
SUBHASH POPATLAL DAVE v. UNION OF INDIA 657
[GYAN SUDHA MISRA, J.]
merely because there is no live link between the existing period A
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 B
set aside the order of detention and may be treated as stare
decisis on the point involved.
20. As a consequence of the analysis in regard to the
validity of the orders of detention challenged by the petitioners
and appellants herein, I deem it correct and legally appropriate
c
to hold that the orders of detention are not fit to be quashed
but the same are fit to be served on the petitioners/appellants
leaving it open to them to challenge the order of detention by
taking recourse to the remedies available to them under the
law by way of an independent proceeding including a D
representation against the order of detention before the
competent authority which is the next legal stage after the order
of detention is served on the proposed detenue. Holding it
otherwise, in my view, would result into acceptance of a sordid
situation akin to the adage of "Let be gone be bygone" which E
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 F
leaving it open to the Petitioners/Appellants to take recourse
to remedies available to them in accordance with the provisions
and procedure established by law after the grounds of detention
are served on them.
G
CHELAMESWAR, J.
"The task of this Court to maintain a balance between
liberty and authority is never done, because new
conditions today upset the equilibriums of yesterday.
The seesaw between freedom and power makes up most H:
658 SUPREME COURT REPORTS (2013] 17 S.C.R.
A of the history of governments, which, as Bryce points out,
on a long view consists of repeating a painful cycle from
anarchy to tyranny and back again. The Court's day-to-
day task is to reject as false, claims in the name of civil
liberty which, if granted, would paralyse or impair
B authority to defend existence of our society, and to reject
as false claims in the name of security which wquld
undermine our freedoms and open the way to
oppression ..... "
- - Justice Jackson in
c
American Communications Association, C. I. 0. Vs.
Charles T. Douds (339 US 385) (94 Led 925 at 968].
2. In my opinion, it is a statement which every judge of
0 Constitutional Courts vested with the authority to adjudicate the
legality of any state action challenged on the ground that such
action is inconsistent with civil liberties guaranteed under the
Constitution must always keep in mind while exercising such
authority.
E 3. The core question in these matters is whether this Court
would be justified in exercising its jurisdiction to examine the
legality of the action of the State in seeking to execute
preventive detention orders (passed long ago) at the pre
execution stage on the claim of each one of the petitioners
F herein that such execution would violate the fundamental rights
of the proposed detenues.
4. The facts are elaborately described in the judgment of
Hon'ble the Chief Justice of India. There is no need to repeat.
G Suffice to say that an order of preventive detention either under
the COFEPOSA Act or the National Security Act is pending
unexecuted for varying periods ranging from 2 to 10 years
approximately.
5. Hence, these petitions complaining that permitting the
H State to execute such preventive detention orders would be
SUBHASH POPATLAL DAVE v. UNION OF INDIA 659
[CHELAMESWAR, J.]
violative of the fundamental rights under Articles 14, 19, 21 and A
22 of the Constitution guaranteed to the proposed detenus. It
is fervently argued on behalf of the petitioners that in view of
the inordinate delay in the execution of the impugned detention
orders in each of the cases, live nexus between the purpose
sought to be achieved by the orders of preventive detention and B
the cause for such orders of detention stood snapped.
6. As already noticed, in the judgment of Hon'ble the Chief
Justice of India, the essential argument of the State in defence
is that the proposed detenus (either personally or through proxy) C
may not be heard to advance such arguments in view of the
fact that such delay as is complained of is a consequence of
the fact that the proposed detenus evaded the process of law
by absconding.
7. Personal liberty is the most valuable fundamental right D
guaranteed under the Constitution. Deprivation of such liberty
is made impermissible by the Constitution except as authorised
under the provisions of Articles 20, 21 and 22. Deprivation of
personal liberty by incarceration as a penalty for the commission
of an offence is one of the recognised modes by which State E
can abridge the fundamental right of personal liberty. Even in
such case the authority of the state is circumscribed by the
limitations contained under Articles 20 and 21 of the
Constitution of India.
8. Article 22 of the Constitution recognises the authority F
of the State to preventively detain a person notwithstanding the
fact that such a person is neither convicted for the commission
of any offence nor sentenced in accordance with law. The
authority of the State to resort to such preventive detention is
more stringently regulated by the dictates of Article 22. The G
nature and scope of the authority to preventively detain a person,
fell for the consideration of this Court on innumerable occasions.
9. This Court consistently held that preventive detention
"does not partake in any manner of the nature of punishment" H
660 SUPREME COURT REPORTS [2013] 17 S.C.R.
A but taken "by way of precaution to prevent mischief to the
C!>mmunity" 1• Therefore, necessarily such an action is always
based on some amount of "suspicion or anticipation''. Hence,
the satisfaction of the State to arrive at a conclusion that a
person must be preventively detained is always subjective.
B Nonetheless, the legality of such subjective satisfaction is held
by this Court to be amenable to the judicial scrutiny in exercise
of the jurisdiction conferred under Articles 32 and 226 of the
Constitution on certain limited grounds.
10. One of the grounds on which an order of preventive
C 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
D of the State etc. In other words, the material relied upon by the
State for preventively detaining a person is so stale that the
State could not have rationally come to a conclusion that it is
necessary to detain a person without a charge or trial.
E 11. The question before us is not whether the detention
order impugned in these matters is illegal on the day of their
making on any of the grounds known to law. Whether the
execution of the preventive detention order (which might
otherwise be valid) after long lapse of time reckoned from the
F 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
G 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
H detention orders were executed but not cases of non-execution
SUBHASH POPATLAL DAVE v. UNION OF INDIA 661
[CHELAMESWAR, J.]
of the detention orders for a long lapse of time after such orders A
came to be passed.
13. Whether the test of live nexus developed by this Court
in the context of examining the legality of the order of preventive
detention can be automatically applied to the question of the 8
legality of the execution of the preventive detention orders where
there is a considerable time gap between the passing of the
order of preventive detention and its execution is the real
question involved in these matters. To answer the question, we
must analyse the probable reason for the delay in executing the C
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 D
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
E
happen in some cases that the execution of the preventive
detention order could be scuttled by the proposed detention
either by concealing himself or absconding from the process
of law. Therefore, specific provisions are made in this regard
under various enactments dealing with the preventive detention.
F
For example, Section 7 of the COFEPOSA Act recognises
such a possibility and stipulates as follows:-
"7. Powers in relation to absconding persons - (1) If the
appropriate Government has reason to believe that a
person in respect of whom a detention order has been G
made has absconded or is concealing himself so that the
order cannot be executed, the Government may -
(a) make a report in writing of the fact to a Metropolitan
Magistrate or a Magistrate of the first c!ass having
H
662 SUPREME COURT REPORTS [2013] 17 S.C.R.
A jurisdiction in the place where the said person
ordinarily resides; and thereupon the provisions of
sections 82, 83, 84 & 85 of the Code of Criminal
Procedure, 1973 (2of1974), shall apply in respect
of the said person and his property as if the.order
B directing that he be detained were a warrant issued
by the Magistrate; ·
(b) by order notified in the Official Gazette direct the
said person to appear before such officer, at such
place and within such period as may be specified
c in the order; and if the said person fails to comply
with such direction, he shall, unless he proves that
it was not possible for him to comply therewith and
that he had, within the period specified in the order,
informed the officer mentioned in the order of the
D reason which rendered compliance therewith
impossible and of his whereabouts, be punishable
with imprisonment for a term which may extend to
one year or with fine or with both.
E (2) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2of1974), every offence under
clause (b) of sub-section (1) shall be cognizable."
16. It can be seen from the said section that in a case
where proposed detenu is absconding or concealing himself,
F 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
G property, as if the order of preventive detention is a warrant
issued by the Magistrate under the provisions of the Code of
Criminal Procedure.
17. In substance, the property of the proposed detenu could
H
SUBHASH POPATLAL DAVE v. UNION OF INDIA 663
[CHELAMESWAR, J.]
be attached and perhaps even be confiscated in an appropriate A
case.
18. Apart from that the State can also by notification of
official gazette direct proposed detenu to appear before an.
officer specified in the said notification at such place and time. 8
Failure to comply with such notified direction on the part of the
proposed detenu - without a reasonable cause - is made an
offence punishable either with imprisonment for a term
extending upto one year or with fine or both.
19. If a preventive detention order is to be quashed or C
declared illegal merely on the ground that the order remained
unexecuted for a long period without examining the reasons for
such non-execution, I am afraid that the legislative intention
contained in provisions such as Section 7(b) of th.e
COFEPOSA Act would be rendered wholly nugatory. D
Parliament declared by such provision that an (recalcitrant)
individual against whom an order of preventive, detention is
issued is under legal obligation to appear before the notified
authority once a notification contemplated under Section 7(b)
of COFEPOSA Act is issued. We have already .noticed that E
failure to appear without a reasonable excuse woula be an
offence and render the defaulter liable for a punishment of
imprisonment. Holding that the preventive detentieln ortiers are
themselves rendered illegal, on the basis of the live nekus theory
(which, in my opinion, is valid only for examining the legality of F
the order, viz-a-viz the date on which the order is passed) would
not only exonerate the person from the preventive detention
order but also result in granting impunity to such person from
the subsequent offence committed by him under the provisions
such as Section ?(b) of the COFEPOSA Act.
G
20. This question fell for consideration of thic Court on
more than one occasion. -J_n Bhawarlal Ganeshmalji Vs. State
of Tamil Nadu & Anr., (1979) 1 SCC 463, this Court speaking
through Justice 0. Chinnappa Reddy held -
H
664 SUPREME COURT REPORTS [2013] 17 S.C.R.
A " ...... where the delay is not only adequately explained but
is found to be the result of the recalcitrant or refractory
conduct of the detenu in evading arrest, there is warrant
to consider the 'link' not snapped but strengthened."
B It was a case where the detenu evaded the arrest for a
priod of more than 3 years but eventually surrendered himself
before the Commissioner of Police, Madras and then
challenged the order of detention. One of the submissions
before this Court was that the detentibn order must be
considered to have lapsed or ceased to be effective in the
C absence of the fresh application of mind of the detaining
authority to the question of continuing necessity for preventive
detention. This Court rejected the submission.
21. The said principle was followed in M. Ahamedkutty
D Vs. Union of India & Anr., (1990) 2 SCC 1.
22. Once again in Union of India & Ors. Vs. Arvind
Shergil/ & Anr., (2000) 7 SCC 601, this Court held that -
"we do not think that it would be appropriate to state that
E merely by passage of time the nexus between the object
for which the husband of the respondent is sought to be
detained and the circumstances in which he was ordered
to be detained has snapped".
F It vvas a case where the detention order was challenged
at the pre-execution stage before the High Court and the High
Court had stayed the execution of the order and the matter was
pending for some time. After losing the matter in the High
Court, the proposed detenu approached this Court without
G 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
H say that their fundamental rights are in jeopardy. At least, in
SUBHASH POPATLAL DAVE v. UNION OF INDIA 665
[CHELAMESWAR, J.]
all those cases, where proceedings such as the one A
contemplated under Sectio.n 7 of the COFEPOSA Act were
initiated consequent upon absconding of the proposed detenu,
the challenge to the detention orders on the live nexus theory
is impermissible. Permitting such an argument would amount
to enabling the law breaker to take advantage of his own s
conduct which is contrary to law.
24. Even in those cases where action such as the one
contemplated under Section 7 of the COFEPOSA Act is not
initiated, the same may not be the only consideration for holding C
the order of preventive detention illegal. This Court in Shafiq
Ahmad Vs. District Magistrate, Meerut, (1989) 4 SCC 556 held
so and the principle w~s followed subsequently in M.
Ahamedkutty Vs. Urrion of India & Anr., (1990) 2 SCC 1,
wherein this Court opined that in such cases, the surrounding
circumstances must be examined. D
25. In both Shafiq Ahmad and Ahamedkutty's cases,
these questions were examined after the execution of the
detention order. Permitting an absconder to raise such
questions at the pre-detention stage, I am afraid would render E
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 F
order prior to its execution" This Court also took note of the
fact that such an inquiry had indeed been undertaken by the
Courts in a very limited number of cases and in circumstances
glaringly untenable at the pre-execution stage.
G
27. The question whether the five circumstances specified
in Alka Subhash Gadia case (supra) are exhaustive of the
grounds on which a pre-execution scrutiny of the legality of
preventive detention order can be undertaken was considered
by us earlier in the instant case. We held that the grounds are H
666 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 'not exhaustive. But that does not persuade me to hold that such
a scrutiny ought to be undertaken with reference to the cases
of those who evaded the process of law.
28. For all the above mentioned. reasons, I regret my
B. inability to agree with the opinion delivered by Hon'ble the Chief
Justice of India. I dismiss all the matters.
Bibhuti Bhushan Bose Matters disposed of.
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