TaxTMI 
TaxTMI 
2013 (8) TMI 8
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....COFEPOSA Act, 1974", could be challenged at the pre-execution stage only on any of the five exceptions carved out by this Court in Addl. Secretary, Govt. of India vs. Alka Subhash Gadia [(1992) Supp. (1) SCC 496], or whether 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, 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 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 th....
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....ohatgi 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 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. 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 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 passed, the very reason for the detention order stood eroded. The detention order, which was to be valid for a period of one year, outlived 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 sim....
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....sed 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 present 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 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, Nitesh Ashok Sadarangani. 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 detention order had become stale since there is no material to indicate that the proposed detenue had indulged in....
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....dant in the absence of any 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 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 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 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 Misc. Application No. 18497 of ....
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....), was passed on 23.1.2012. Prior to the passing of the detention order, the 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 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 appropriate relief, if any. 15. Pursuant to the leave granted by this Court, on 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, the Bombay High Court passed an ad interim order directing the Respondents authorities not to take coercive action against the Pet....
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....ion of offences referred to in the detention order. 18. Writ Petition (Crl.) No. 249 of 2011 filed by Manju R. 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 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 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 of the Customs Act, 1962, granted full immunity to Shri Rajesh Kumar Agarwal from payment of penalty as well as complete immunity from prosecution....
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....on grounds other than those categorized in Alka Subhash Gadia's case, had been considered earlier on 10th July, 2012, the Court was of 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 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 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 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 ....
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....t would strengthen the link. 24. Mr. Malhotra also referred to the decisions of this Court in Union of India Vs. Amrit Lal Manchanda [(2004) 3 SCC 75] as also in M. Ahamedkutty Vs. Union of India [(1990) 2 SCC 1], wherein it had also been observed 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 Shergill [(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 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 SCC 14], wherein in common it had been held that the delay in executing the order of dete....
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.... 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 the revocation of the detention order 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 urged that the proposed detenue was claiming parity with the order 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 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 order for about two years, his Petition deserves to be dismissed. 28. With regard....
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....ently, 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 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. 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 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 Authority and served on the family members of the detenue. On his failure to respond to the summons, an order was passed under Section 7(1)(b) of the COFEPOSA Act, on 7.12.2011. Mr. Marlapalle ....
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....t the detention order had earlier been challenged by the Petitioner before the Bombay High Court in Criminal Writ Petition No. 1645 of 2010. The Writ Petition was 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 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, 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. 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 th....
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.... be said to exist between 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 indicated in the detention order? In the absence of 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 fact and 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 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 passed? (vi) Whether the provisions of Section 7 of the COFEPOSA Act, 1974, and Section 7 of the National Security Act, 1980, can be made the basis for making an order of preventive detention? 39. As far as the first ground of challenge is concerned, we h....
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.... 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 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 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. 41. As far as the fourth ground is concerned, one has to bear in the mind that the provision of the Customs Act and other 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 127B empowers any importer, exporter or any other person to ....
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....elow: "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 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 class having 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 (2 of 1974), shall apply 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 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, informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and of....
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....tinue to subsist after a long period had lapsed 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 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 to preventive detention with great care and caution to ensure that the provision was not misused by the 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, 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 m....
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....e 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 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 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, 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 to the question regarding the validity of the detention orde....
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....rit Petition (Crl.) No. 35 of 2011, filed by Suresh D. Hotwani. (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. (v) Criminal Appeal @ SLP (Crl.) No. 1909 of 2011, filed by Anil Kailash Jain. (vi) Criminal Appeal @SLP(Crl.) No. 1938 of 2011, filed by Sureshkumar Ukchand Jain. (vii) Criminal Appeals @ SLP (Crl.) Nos. 2091-2092, filed by Rajesh Verma. 54. However, the Transferred Cases @ Transfer Petition (Crl.) Nos. 38-39 of 2013, filed by Vijay Ram Bilas Gupta, Writ 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. 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 against Nitesh Ashok Sadarangani on 12.3.2001. Since the said detentio....
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....ention 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 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. 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 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 such crime in future then, whether such order of 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 n....
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....g 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 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 at the 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 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 of India, (2000) 3 SCC 409 wherein the Constitution Bench observed that a person may try to absco....
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.... 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. 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 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 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 available grounds like delay in execution of detention order, delay in consideration of the representation and the like and while dealing with the impact....
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.... or on his behalf that the period for which detention 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 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 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 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 wou....
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....he pre-execution stage on any ground, evade the detention in 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, in my view, would render the very purpose of preventive 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 relied upon by the authorities for passing the order of detention so as to contend that at the 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 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 ....
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.... 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 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 of a specific date relating to the relevant period is under 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 not possible to lose sight of the fact that if the petitioners and the appellants had preferred not to challenge the order of detention at the pre-execution stage or had not evaded arrest, the grou....
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....ruse 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 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 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 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 stage merely to consider whether the order of detention could be allowed to be challenged on other grounds, than wha....
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....ack 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 authority to defend existence of our society, and to reject as false claims in the name of security which would undermine our freedoms and open the way to oppression....." ----- Justice Jackson in American Communications Association, C.I.O. Vs. Charles T. Douds [339 US 385) [94 Led 925 at 968]. 2. In my opinion, it is a statement which every judge of 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. 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 herein that such execution would violate the fundamental rights of the proposed detenues. 4. The facts are elaborately descr....
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.... manner of the nature of punishment" but taken "by way of precaution to prevent mischief to the community"[ (a) Khudiram Das v. State of W.B., AIR 1975 SC 550 - "...... The power of detention is clearly a preventive measure.. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof. ... 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, having 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 necess....
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....econcile the liberty of the individual with the allegedly threatened interests of the society and the security of the State particularly during times of peace. It is as much a deprivation of liberty of an individual as the punitive detention. Worse still, unlike the latter, it is resorted to prevent the possible misconduct in future, though the prognosis of the conduct is based on the past record of the individual. The prognosis further is the result of the subjective satisfaction of the detaining authority which is not justiciable. The risk to the liberty of the individual under our detention law as it exists is all the more aggravated because the authority entrusted with the power to detain is not directly accountable to the legislature and the people. ) 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 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 tha....
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.... 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 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 class having 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 (2 of 1974), shall apply 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 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, informed the officer mentioned in the order of the reason which rendered ....
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....z-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 7(b) of the COFEPOSA Act. 20. This question fell for consideration of this Court on more than one occasion. In Bhawarlal Ganeshmalji Vs. State of Tamil Nadu & Anr., (1979) 1 SCC 463, this Court speaking through Justice O. Chinnappa Reddy held - "...... 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." 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 detention order must be considered to have lapsed or ceased to be effective in the absence of the fresh application of mind of the detaining authority to the question of continuing necessity for preventi....
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....Security Act by itself was not sufficient to vitiate the order in view of the fact that the police force remained extremely busy in tackling the serious law and order problem. However, it was not accepted as a proper explanation for the delay in arresting the detenu. In that case the alleged incidents were on April 2/3/9, 1988. The detention order was passed on April 15, 1988 and the detenu was arrested on October 2, 1988. The submission was that there was inordinate delay in arresting the petitioner pursuant to the order and that it indicated that the order was not based on a bona fide and genuine belief that the action or conduct of the petitioner were such that the same were prejudicial to the maintenance of public order. Sabyasachi Mukharji, J., as my Lord the Chief Justice then was, observed that whether there was unreasonable delay or not would depend upon the facts and circumstances of a particular situation and if in a situation the person concerned was not available and could not be served, then the mere fact that the action under Section 7 of the Act had not been taken, would not be a ground for holding that the detention order was bad. Failure to take action even if ther....