TaxTMI 
TaxTMI 
2008 (3) TMI 623
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....l purchase and sale of blue kerosene oil in black market since last five to six years. Certain cases were also registered against the said Bhaurao under the Essential Commodities Act, 1955 (hereinafter referred to as '1955 Act'). In view of continuous activities of Bhaurao in black-marketing of essential commodity (Kerosene), the Commissioner of Police (appellant No.2 herein), in exercise of power conferred on him by sub-section (1) read with Clause (b) of sub-section (2) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as 'the Act') directed that the said Bhaurao be detained. Grounds of detention were sought to be served to the detenu on the same day. 4. According to the appellants, in accordance with sub-section (3) of Section 3 of the Act, the order of detention passed by the Commissioner of Police was approved by the State Government. The detenu somehow came to know about the order of detention being passed again him and absconded himself. He, therefore, could not be detained, nor served with the order or grounds of detention in support of the order. WRIT PETITION 5. The detenu, without submitting to....
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....ention had been passed, unless he surrendered. The Court, however, proceeded to state that it perused the grounds of detention with a view to satisfy itself about the legality of the order of detention. The Court noted that the authorities made the record available to the Court and the Court had 'carefully' examined it. The Court then concluded; "We find that the present petition can be entertained at preexecution stage". 9. The High Court considered the relevant provisions of the Act as also the Maharashtra Kerosene Dealers' Licensing Order, 1966 and the Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993. It observed that if the cases instituted against the detenu were taken into consideration by the Detaining Authority, it could not be said that the Detaining Authority could not have reached 'subjective satisfaction' on that basis and as such the order could not be challenged. The High Court also conceded that normally, a Court would not interfere with the order of detention at pre-execution stage. It, however, held that the present case was covered by one of the exceptions laid down in Addl. Secretary to the Government of India & Ors. v. Smt. Alka Subhash G....
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.... the 1955 Act and consistent conduct of the detenu revealed that he continued to indulge in black marketing activities. If it is so, a preventive action under the Act was called for and such action could not have been interfered with by the High Court. It was also submitted that the High Court was not right in observing that the detenu was ill-treated when he was arrested in connection with Crime No. 3022 of 2006 at Police Station, Wadi (Nagpur) and there was 'custodial violence' by police authorities. But, even if it is assumed to be true, the detenu could have taken appropriate action in accordance with law. That, however, does not make order of detention vulnerable. The counsel also contended that the High Court was not right that no other steps had been considered by the authorities. In fact, the detenu was directed to execute a bond of good behavior and such bond was also executed by him. It was, therefore, submitted that the order passed by the High Court deserves to be set aside by allowing the Detaining Authority to execute the order of detention against the detenu and by granting liberty to the detenu to challenge the order by taking appropriate action in accordance with l....
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....g aside the order of detention at pre-execution stage. It cannot be gainsaid that the order of detention has been made against the detenu in exercise of power under the Act since the Detaining Authority was satisfied that detention of the writ-petitioner was necessary "with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities to the community" i.e. selling of kerosene in black market. True it is that such order must be 'preventive' and not 'punitive' in nature. But the Court must be conscious and mindful that the satisfaction of the Detaining Authority is 'subjective' in nature and the Court cannot substitute its 'objective' opinion for the subjective satisfaction of Detaining Authority for coming to the conclusion whether the activities of the detenu were or were not prejudicial to the maintenance of supplies of essential commodities to the society. It would, therefore, be appropriate if we consider the concept of and relevant principles governing 'preventive detention'. PERSONAL LIBERTY : PRECIOUS RIGHT 17. There can be no doubt that personal liberty is a precious right. So did the Founding Fathers believe because, while t....
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....mportant safeguards of the liberty of the subject. If upon the return to that writ it was adjudged that no legal ground was made to appear justifying detention, the consequence was immediate release from custody. If release was refused, a person detained might make a fresh application to every judge or every Court in turn, and each Court or Judge was bound to consider the question independently and not to be influenced by the previous decisions refusing discharge. If discharge followed, the legality of that discharge could never be brought in question. No writ of error or demurrer was allowed." 21. In R v. Secretary of State for Home Affairs; ex parte O'Brien, (1923) 2 KB 361 : 1923 AC 603 : 92 LJKB 797, Scrutton, LJ observed: "The law in the country has been very zealous of any infringement of personal liberty. This case is not to be exercised less vigilantly, because the subject whose liberty is in question may not be particularly meritorious. It is indeed one test of belief in principles if you apply them to cases with which you have no sympathy at all. You really believe in freedom of speech, if you are willing to allow it to men whose opinion seem to you wrong and even danger....
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....ned by Dua, J. in Sapmawia v. Deputy Commissioner, Aijal, (1971) 1 SCR 690, in the following words: "The writ of habeas corpus is a prerogative writ by which, the causes and validity of detention of a person are investigated by summary procedure and if the authority having his custody does not satisfy the court that the deprivation of his personal liberty is according to the procedure established by law, the person is entitled to his liberty. The order of release in the case of a person suspected of or charged with the commission of an offence does not per se amount to his acquittal or discharge and the authorities are not, by virtue of the release only on habeas corpus, deprived of the power to arrest and keep him in custody in accordance with law for this writ is not designed to interrupt the ordinary administration of criminal law". PREVENTIVE DETENTION : MEANING AND CONCEPT 26. There is no authoritative definition of 'preventive detention' either in the Constitution or in any other statute. The expression, however, is used in contradistinction to the word 'punitive'. It is not a punitive or penal provision but is in the nature of preventive action or precautionary measure. T....
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....of Lord Finlay in Rex v. Halliday, 1917 AC 260 namely, that "the court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based". This being the nature of the proceeding, it is impossible to conceive how it can possibly be regarded as capable of objective assessment. The matters which have to be considered by the detaining authority are whether the person concerned, haying regard to his past conduct judged in the light of the surrounding circumstances and other relevant material, would be likely to act in a prejudicial manner as contemplated in any of sub-clauses (i), (ii) and (iii) of Clause (1) of Sub-section (1) of Section 3, and if so, whether it is necessary to detain him with a view to preventing him from so acting. These are not matters susceptible of objective determination and they could not be intended to be judged by objective standards. They are essentially matters which have to be administratively determined for the purpose of taking administrative action. Their determination is, therefore, deliberately and advisedly left by the legislature to the subjective satisfaction of the detaining a....
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....tire proceedings. Inordinate delay, for which no adequate explanation is furnished, led to the assumption that the live and proximate link between the grounds of detention and the purpose of detention is snapped". [See : P.U. Iqbal v. Union of India and Ors., (1992) 1 SCC 434; Ashok Kumar v. Delhi Administration, (1982) 2 SCC 403 and Bhawarlal Ganeshmalji v. State of Tamilnadu, (1979) 1 SCC 465]. PREVENTIVE DETENTION : NECESSARY EVIL 30. Liberty of an individual has to be subordinated, within reasonable bounds, to the good of the people. The framers of the Constitution were conscious of the practical need of preventive detention with a view to striking a just and delicate balance between need and necessity to preserve individual liberty and personal freedom on the one hand and security and safety of the country and interest of the society on the other hand. Security of State, maintenance of public order and services essential to the community, prevention of smuggling and black marketing activities, etc. demand effective safeguards in the larger interests of sustenance of a peaceful democratic way of life. In considering and interpreting preventive detention laws, courts ought to s....
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....order is passed is already in jail; the order is punitive in nature; the order is not approved by State/Central Government as required by law; failure to refer the case of the detenu to the Board constituted under the statute; the order was quashed/revoked and again a fresh order of detention was made without new facts, etc. CHALLENGE TO DETENTION-ORDER PRIOR TO EXECUTION 35. A writ of habeas corpus may be prayed in case of actual detention or imprisonment of a person if it is illegal or unconstitutional. But if a person is not actually detained, obviously a writ of habeas corpus would not lie. A question, however, may arise whether in such an eventuality, no remedy at all is available to an aggrieved person against whom an order of detention has been made and such order is still to be executed. In other words, whether actual detention of a person against whom an order of detention is made is sine qua non or condition precedent for approaching a Court of Law. 36. On this question, our attention has been invited by the learned counsel for both the sides to several decisions of this Court. Having gone through those decisions, we are of the view that normally and as a general rule....
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....ot to infringe that right. The question is at what stage the right can be enforced? Does a citizen have to wait till the right is infringed? Is there no way of enforcement of the right before it is actually infringed? Can the obligation or compulsion on the part of the State to observe the right be made effective only after the right is violated or in other words can there be enforcement of a right to life and personal liberty before it is actually infringed? What remedy will be left to a person when his right to life is violated? When a right is yet to be violated, but is threatened with violation can the citizen move the court for protection of the right? The protection of the right is to be distinguished from its restoration or remedy after violation. When right to personal liberty is guaranteed and the rest of the society, including the State, is compelled or obligated not to violate that right, and if someone has threatened to violate it or its violation is imminent, and the person whose right is so threatened or its violation so imminent resorts to Article 226 of the Constitution, could not the court protect observance of his right by restraining those who threatened to viola....
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....ion and for restoration of the right". (emphasis supplied) 38. Alka Subhash Gadia was indeed a leading decision of this Court on the point. This Court in that case stated that if in each and every case a detenu is permitted to challenge an order of detention and seek stay of the operation of the order before execution, "the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period". 39. The Court, after considering several cases, observed that with a view to prevent possible abuse of 'draconian measure' of preventive detention, the Legislature had taken care to provide various salutary safeguards such as (i) obligation to furnish to the detenu the grounds of detention; (ii) right to make representation against such action; (iii) constitution of Advisory Board consisting of persons who are or have been qualified to be appointed as Judges of the High Court; (iv) reference of the case of the detenu to the Advisory Board; (v) hearing of the detenu by the Advisory Board in person; (vi) obligation of the Government to revoke detention order if the Advisory Board so opines; (vii) maximum period for whi....
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.... To accept Shri Jain's present contention would mean that the courts should disregard all these time-honoured and well-tested judicial self-restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri Sibbal for the appellants, as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period. Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre- execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which....
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.... the authority at any stage. It was when the detenu was arrested in 2006 and a complaint was made against 'custodial violence' meted out to him by police authorities while he was in custody that with a view to save the skin of erring police officials that an illegal order of detention was passed. Thus, it was made for 'wrong purpose' and not with a view to preventing the writ petitioner from indulging in black marketing of kerosene. The High Court found 'considerable force' in the submission. The High Court, with respect, went wrong in observing that once a detenu had made allegations against the police atrocities and custodial violence, the Detaining Authority ought to have waited till the inquiry was conducted and report submitted. 45. The Court observed; "We find considerable force in this submission. A careful perusal of the events that followed the registration of Crime No.3022/2006 at P.S. Wadi (Nagpur) indicates that the petitioner made allegations against Respondent No. 3 about custodial violence immediately on his release. The said complaint dated 20.7.2006 was addressed to Respondent No.2. This complaint was forwarded by Respondent No.2 to DCP- 1 Nagpur on 26.7.2006 for ....
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....nt. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu. The recent decisions of this Court on this subject are many. The decisions in Borjahan Gorey v. The State of West Bengal reported in (1972) 2 SCC 550, Ashim Kumar Ray v. State of West Bengal reported in (1973) 4 SCC 76, Abdul Aziz v. The Distt. Magistrate, Burdwan and Ors. reported in (1973) 1 SCC 301 and Debu Mahto v. The State of West Bengal reported in (1974) 4 SCC 135 correctly lay down the principles to be followed as to whether a detention order is valid or not. The decision in Biram Chand v. State of Uttar Pradesh and Ors. reported in (1974) 4 SCC 573 which is a Division Bench decision of two learned Judges is contrary to the other Bench decisions consisting in each case of three learned Judges. The principles which can be broadly stated are these. First merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for ....
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....uld not affect detention of the writpetitioner. Whether there was such custodial violence and whether police officers had abused their position can indeed be gone into by a competent authority or by a Court of law. That circumstance, however, will not make the order of detention invalid or for a 'wrong purpose'. Externment proceedings initiated against the detenu under Section 59 of the Bombay Police Act, 1951 also would not make the action assailable. In our considered opinion, therefore, this was not a case in which interference was warranted at pre-execution stage. 50. In this connection, it may be profitable if we refer to a decision of this Court in Subhash Muljimal Gandhi v. L. Himingliana & Anr., (1994) 6 SCC 14. There, an order of detention was challenged by the detenu at pre-execution stage. It was contended by the detenu tht the contingencies noted in Alka Subhash Gadia were illustrative and not exhaustive. It was submitted that there might well be other contingencies where such order could be questioned at pre-execution stage. In that case also, it was alleged that the detenu was harassed, humiliated and beaten by authorities and the case called for grant of relief befo....
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....delay. (emphasis supplied) 53. The Court, however, held that it cannot be contended as a proposition of law that a writ Court has no jurisdiction to make an interim order giving the detenu the relief which the Court would be entitled to grant at the end of the proceedings. If the Court has jurisdiction to give the main relief to the detenu at the end of the proceedings, on principle and in theory, it is not easy to understand why the Court cannot give interim relief to the detenu pending the final disposal of his writ petition. The interim relief which can be granted in habeas corpus proceedings must no doubt be in aid of, and auxiliary to, the main relief. It cannot be urged that releasing a detenu on bail is not in aid of, or auxiliary to the main relief for which a claim is made on his behalf in the writ petition. 54. The Court then concluded: "In dealing with writ petitions of this character, the Court has naturally to bear in mind the object which is intended to be served by the orders of detention. It is no doubt true that a detenu is detained without a trial; and so, the courts would inevitably be anxious to protect the individual liberty of the citizen on grounds which ar....