By TIOL News Service

NEW DELHI, JULY 25, 2013: IN (2012-TIOL-50-SC-RTI-LB) the Supreme Court observed, "the right of a detenu to challenge his detention at the pre-execution stage on grounds other than those set out in paragraph 30 of the judgment in Alka Subhash Gadia's case, requires further examination." And for this purpose the Larger Bench was reconstituted.

The common question of law involved in these Appeals, Writ Petitions and Transfer Petitions is whether a detention order passed under the provisions of the Conservation of Foreign Exchange and 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 A ddl. Secretary, Govt. of India vs. Alka Subhash Gadia , or whether such challenge could be maintained on other grounds as well.

In Alka Subhash Gadia's case it was held that in cases of quashing of detention orders at the predetention stage, the Courts have necessary powers in appropriate cases to interfere with the detention order but the scope of interference was limited to the following exceptions :

(i) That the impugned order is not passed under the Act under which it is purported to have been passed;

(ii) That it is sought to be executed against a wrong person;

(iii) That it is passed for a wrong purpose;

(iv) That it is passed on vague, extraneous and irrelevant grounds; or

(v) That the authority, which passed it, had no authority to do so.

The grounds taken on behalf of the several Petitioners/ 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 Alka Subhash Gadia's case (supra), and that the five exceptions carved out in Alka Subhash Gadia's case were illustrative and not exhaustive.

(ii) Whether any live link could 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?

The Bench consisting of Chief Justice Altamas Kabir , Justice Gyan Sudha Misra and Justice J Chelameswar gave three different orders with Justice Gyan Sudha Misra and Chelameswar not agreeing with the Chief Justice.

The CJI observed:

Ground No. 1 : 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 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 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. 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 extra caution and not as an alternative to the ordinary laws of the land.

Ground No. 2,3 and 6: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 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 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 order had been passed continued to subsist so that the same could be executed even at a later date. 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.

Ground No. 4:Clearly, the object with which the said provisions had 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 considering the matter from its various angles. 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 of the COFEPOSA Act, 1974, or any other ancillary provisions, is involved in fresh transgression of the law.

Ground No. 5: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 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 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-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 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 unexecuted for several years becomes open to question regarding its executability .

The Chief Justice held that:

1. 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 detention order on grounds other than the five grounds enumerated in Alka Subhash Gadia's case.

2. 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 a case for prosecution against the proposed detenue .

3. 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 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.

4. The orders of detention challenged therein 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 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.

However Justice Gyan Sudha Misra did not agree - She held:

1. 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 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 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.

2. It is 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 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 stage after the order of detention is served on the proposed detenue . Holding it otherwise, would result into acceptance of a sordid situation akin to the adage of "Let be gone be bygone" which 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 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.

Justice Chelameswar also did not agree with the Chief Justice and observed:

1. 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 .

2. 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 the reasons for such non-execution, I am afraid that 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) 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 failure to appear without a reasonable excuse would be an offence and render the defaulter liable for a punishment of imprisonment. Holding that the preventive detention orders are themselves rendered illegal, on the basis of the live nexus theory (which, in my opinion, is valid only for examining the legality of 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 7(b) of the COFEPOSA Act.

3. 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 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.

He regretted his inability to agree with the opinion of the Chief Justice and he dismissed all the matters.

Thus, by 2:1, the petitioners lost the case in the Supreme Court.

(See 2013-TIOL-33-SC-COFEPOSA-LB)