TaxTMI 
TaxTMI 
TaxTMI 
2003 (12) TMI 587
X X X X Extracts X X X X
X X X X Extracts X X X X
.... detention is passed is detained. It was noted that he had a right to make representation and also to be heard before the Advisory Board constituted under the Act. The procedure indicated in the Act safeguards the rights available under Article 22 of the Constitution. Reference was made to the earlier writ petitions which were filed and it was noted that in the earlier writ petitions the challenges were on similar footings. Circumstances under which the order of detention could be quashed at the pre-detention stage were highlighted by this Court in Additional Secretary to the Government of India and Ors. v. Smt. Alka Subhash Gadia and Anr. (1992 Supp (1) SCC 496) and according to the High Court this was not a case where the order of detention could be nullified at the pre-detention stage. The Court also noticed that the appellant has tried to avoid process of law for a long period and wanted to take advantage of that, which he cannot be permitted to do and the law has to take its own course. In support of the appeal, learned counsel for the appellant submitted that the occurrence which formed foundation for the order of detention relates to an incident which took place during an ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fore this Court which was withdrawn on 15.4.1996. The second writ petition Crl.W.J.C. 369 of 1996 was filed and the same was dismissed on 26.6.1996. The appellant was declared as absconder in terms of Section 16 of the Act by order dated 12.1.1997. Thereafter writ petition to which this case relates was filed on 21.2.1997 which came to be dismissed by the impugned judgment dated 4.3.1997. A preliminary objection has been raised by the respondent-State as noted above stating that the parameters for entertaining petition questioning legality of the order of detention before execution has been laid down in many cases, and the appellant has not made out a case for interference before execution of the detention order. Before dealing with rival submissions, it would be appropriate to deal with the purpose and intent of preventive detention. Preventive detention is an anticipatory measure and does 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 d....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... needs of an orderly society on the other. The question whether the detenu or any one on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it has been examined by this Court on various occasions. One of the leading judgments on the subject is Smt. Alka Subhash's case (supra). In para 12 of the said judgment, it was observed by this Court as under: "12. This is not to say that the jurisdiction of the High Court and the Supreme Court under Articles 226 and 32 respectively has no role to play once the detention \026punitive or preventive- is shown to have been made under the law so made for the purpose. This is to point out the limitations, which the High Court and the Supreme Court have to observe while exercising their respective jurisdiction in such cases. These limitations are normal and well known, and are self-imposed as a matter of prudence, propriety, policy and practice and are 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 legislation or o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....it will proceed to investigate the case on its merit and if the Court finds that there is an infringement of the petitioner's legal rights, it will grant final relief but will not dispose of the petition only by granting interim relief (vii) where the satisfaction of the authority is subjective, the Court intervenes when the authority has acted under the dictates of another body or when the conclusion is arrived at by the application of a wrong test or misconstruction of a statute or it is not based on material which is of a rationally probative value and relevant to the subject matter in respect of which the authority is to satisfy itself. If again the satisfaction is arrived at by taking into consideration material, which the authority properly could not, or by omitting to consider matters, which it sought to have, the Court interferes with the resultant order. (viii) In proper cases the Court also intervenes when some legal or fundamental right of the individual is seriously threatened, though not actually invaded". It is to be noted that as rightly submitted by learned counsel for the respondent-State, that the plea that order of detention was passed beyond the period authori....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... case does not fall under any of the aforesaid five exceptions for the Court to interfere. It was contended that these exceptions are not exhaustive. We are unable to agree with this submission. Alka Subhash's case (supra) shows that it is only in these five types of instances that the Court may exercise its discretionary jurisdiction under Article 226 or Article 32 at the pre-execution stage. The appellant had sought to contend that the order which was passed was vague, extraneous and on irrelevant grounds but there is no material for making such an averment for the simple reason that the order of detention and the grounds on which the said order is passed has not been placed on record inasmuch as the order has not yet been executed. The appellant does not have a copy on the same, and therefore, it is not open to the appellant to contend that the non-existent order was passed on vague, extraneous or on irrelevant grounds". This Court's decision in Union of India and Ors. v. Parasmal Rampuria (1998 (8) SCC 402) throws considerable light as to what would be the proper course for a person to adopt when he seeks to challenge an order of detention on the available grounds like delaye....