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2004 (2) TMI 361

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....een this case and the other case relates to the dates. The order of detention was passed under section 3(1) of COFEPOSA on 31-10-2001. The respondent filed a writ petition before the Punjab and Haryana High Court on 20-12-2001 and on 21-12-2001 an order staying operation of the detention order was passed. On 31-5-2002 the High Court decided that it had territorial jurisdiction to deal with the matter, but dismissed the writ petition. An application for review was filed on the ground that though it was noted that the writ petition was dismissed, in fact the various points urged in support of the writ application were not considered. The High Court issued notice on the review petition and pending consideration stayed the operation of detention order. When the matter was heard afresh before the High Court it appears that only one point was urged i.e. passage of time between the date of the detention order and the date on which the High Court had taken up the writ petition for consideration. Relying on a decision of this Court in Sunil Fulchand Shah v. Union of India [2000] 3 SCC 409 the High Court held the order of detention dated 31-10-2001 to be unsustainable. However, it permitted ....

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....s not relate to an offence, while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the Executive is convinced that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the concerned law. The action of Executive in detaining a person being only precautionary, normally the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct in an exhaustive manner, the failure to conform to which should lead to detention. The satisfaction of the Detaining Authority, therefore, is considered to be of primary importance, with great latitude in the exercise of its discretion. The Detaining Authority may act on any material and on any information that it may have before it. Such material and information may merely afford basis for a sufficiently strong suspicion to take action, but may not satisfy the tests of legal proof on which alone a conviction for of....

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....e observed while dealing with cases under all laws. Though the Constitution does not place any restriction on these powers, the judicial decision have evolved them over a period of years taking into consideration the nature of the right infringed or threatened to be infringed, the scope and object of the legislation or of the order or decision complained of, the need to balance the rights and interests of the individual as against those of the society, the circumstances under which and the persons by whom the jurisdiction is invoked, the nature of relief sought, etc. To illustrate these limitations : (i) in the exercise of their discretionary jurisdiction the High Court and the Supreme Court do not, as courts of appeal or revision, correct mere errors of law or of facts; (ii) the resort to the said jurisdiction is not permitted as an alternative remedy for relief which may be obtained by suit or other mode prescribed by statute. Where it is open to the aggrieved person to move another Tribunal or even itself in another jurisdiction for obtaining redress in the manner provided in the statute, the court does not, by exercising the writ jurisdiction, permit the machinery created by th....

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....viii) in proper cases the court also intervenes when some legal or fundamental right of the individual is seriously threatened, though not actually invaded." (p. 506) 11. In Sayed Taher Bawamiya v. Joint Secretary to the Government of India [2000] 8 SCC 630, it was observed by this Court as follows : "6. This Court in Addl. Secretary to the Government of India v. Smt. Alka Subhash Gadia 1992 Suppl. (1) SCC 496 case was also concerned with a matter where the detention order had not been served, but the High Court had entertained the petition under Article 226 of the Constitution. This Court held that equitable jurisdiction under Article 226 and Article 32 which is discretionary in nature would not be exercised in a case where the proposed detenu successfully evades the service of the order. The Court, however, noted that the courts have the necessary power in appropriate case to interfere with the detention order at the pre-execution stage but the scope for interference is very limited. It was held that the Courts will interfere at the pre-execution stage with the detention orders only after they are prima facie satisfied : (i )that the impugned order is not passed under the Act ....

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....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. When the writ petition was filed, the respondent had not surrendered. Under these circumstances, the proper order which was required to be passed was to call upon the respondent first to surrender pursuant to the detention order and then to have all his grievances examined on merits after he had an opportunity to study the grounds of detention and to make his representation against the said grounds as required by Article 22(5) of the Constitution." 13. In Sunil Fulchand Shah's case (supra) a Constitution Bench of this Court observed that a person may try to abscond and thereafter take a stand that period for which detention was directed is over and, therefore, order of detention is infructuous. It was clearly held that the same plea even if raised deserved to be rejected as without substance. It should all the more be so when the detenu stalled the service of the order and/or detention in custody by obtaining orders of Court. In fact, in Sayed Taher Bawamiya's case (supra) the fact position shows that 16 years had elapsed yet....

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....ds of Lord Denning in the matter of applying precedents have become locus classicus. "Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. ****** Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it." 16. The High Court does not appear to have considered the case in the background of whether any relief was available to the writ petitioner even before the order of detention was executed. The decision relied upon by it was not strictly applicable. Merely because the High Court had granted stay of the order of detention, the respondent cannot take advantage of the orde....