# 17 S.C.R. 596 SUBHASH POPATLAL DAVE v. UNION OF INDIA & ANR

- **Citation:** [2013] 17 S.C.R. 596
- **Court:** Supreme Court of India
- **Decided:** 2013-07-16
- **Bench:** Altamas Kabir, Gyan Sudha Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/17-s-c-r-596-subhash-popatlal-dave-v-union-of-india-anr-28805
- **Pages:** 71

## Headnote

CHELAMESWAR, JJ.]
Preventive Detention - Test of live nexus in the context
C of examining the legality of the order of preventive detention
- If can be _automatically applied to the question of the legality
of the execution of the preventive detention orders where there
is a considerable time gap between the passing of the order
of preventive detention and its execution - Whether the
D proposed detenues who absconded or evaded the execution
of the detention order, and subsequently challenged the order
of detention 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 - Held (per
E majority): 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 sit"ation - Where proceedings were initiated
consequent upon absconding of the proposed detenu, the
F
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 -
FilL.B circumstances
specified in Alka Subhash Gadia case are not exhaustive
grounds on which a pre-execution scrutiny of the legality of
· G preventive detention order can be undertaken - But it cannot
be held that such a scrutiny ought to be undertaken with
1
reference to the cases of those who evaded the process of
law - Those who evaded the process of law not to be heard
H
596
SUBHASH POPATLAL DAVE v. UNION OF INDIA
597
by the Court to say that their fundamental rights are in
A
jeopardy - Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1974 - ss.6 and 7 - National
Security Act, 1980 - ss.6 and 7.
B
The question which initially arose for consideration
before this Court in all these matters was whether a
detention order passed under the provisions of the
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (COFEPOSA) could be
challenged at the pre-execution stage only on any of the
C
five exceptions carved out by this Court in Atka Subhash
Gadia case, or whether such challenge could be
maintained on other grounds as well.
This Court (Bench) vide judgment and order dated
10.07.2012 held that the order of preventive detention can
D
be challenged beyond the five conditions enumerated in
Atka Subhash_Gadia's case. It was held that the order of
preventive detention can be challenged beyond the five
grounds enumerated in the case of Atka Subhash Gadia's
case at the pre-execution stage.
E
However, inasmuch as orders of preventive
detention either under the COFEPOSA Act or the National
Security Act, 1980 were pending unexecuted for varying
periods ranging ·fr.om 2 to 10 years approximately, a·
further question cropped up for consideration before this
F
Court as to whether the proposed detenues who
absconded or evaded the execution of the detention
order, and subsequently challenged the order of·
detention at the pre-execution stage after a long lapse of
time could take advantage of non-execution and
G
challenge the detention order which remained
unexecuted.
Whether the test of hive nexus developed by this
Court in the context of examining the legality of the order
H
.
598 SUPREME COURT REPORTS
[2013] 17 S.C.R.
A of preventive detention can be automatically applied to
the question of the legality of the execution_ of the
preventive detention orders where there is a
considerable time gap between the passing of the order
of preventive detention and its execution was thus the
8
question involved in these matters.
Disposing of the matters, the Court
HELD:
Per Gyan Sudha Misra, J. [With Chelameswar, J.
C concurring]
1. It is essentially the sufficiency of materials relied
upon for passing the order of detention which ought to
weigh as to whether the order of detention was fit to be
o quashed and set aside an

## Text

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A
8
(2013] 17 S.C.R. 596
SUBHASH POPATLAL DAVE
v.
UNION OF INDIA & ANR.
(WRIT PETITION (CRL.) N0.137 OF 2011)
JULY 16, 2013
[ALTAMAS KABIR, CJI, GYAN SUDHA MISRA AND J.
CHELAMESWAR, JJ.]
Preventive Detention - Test of live nexus in the context
C of examining the legality of the order of preventive detention
- If can be _automatically applied to the question of the legality
of the execution of the preventive detention orders where there
is a considerable time gap between the passing of the order
of preventive detention and its execution - Whether the
D proposed detenues who absconded or evaded the execution
of the detention order, and subsequently challenged the order
of detention 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 - Held (per
E majority): 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 sit"ation - Where proceedings were initiated
consequent upon absconding of the proposed detenu, the
F
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 -
FilL.B circumstances
specified in Alka Subhash Gadia case are not exhaustive
grounds on which a pre-execution scrutiny of the legality of
· G preventive detention order can be undertaken - But it cannot
be held that such a scrutiny ought to be undertaken with
1
reference to the cases of those who evaded the process of
law - Those who evaded the process of law not to be heard
H
596
SUBHASH POPATLAL DAVE v. UNION OF INDIA
597
by the Court to say that their fundamental rights are in
A
jeopardy - Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1974 - ss.6 and 7 - National
Security Act, 1980 - ss.6 and 7.
B
The question which initially arose for consideration
before this Court in all these matters was whether a
detention order passed under the provisions of the
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (COFEPOSA) could be
challenged at the pre-execution stage only on any of the
C
five exceptions carved out by this Court in Atka Subhash
Gadia case, or whether such challenge could be
maintained on other grounds as well.
This Court (Bench) vide judgment and order dated
10.07.2012 held that the order of preventive detention can
D
be challenged beyond the five conditions enumerated in
Atka Subhash_Gadia's case. It was held that the order of
preventive detention can be challenged beyond the five
grounds enumerated in the case of Atka Subhash Gadia's
case at the pre-execution stage.
E
However, inasmuch as orders of preventive
detention either under the COFEPOSA Act or the National
Security Act, 1980 were pending unexecuted for varying
periods ranging ·fr.om 2 to 10 years approximately, a·
further question cropped up for consideration before this
F
Court as to whether the proposed detenues who
absconded or evaded the execution of the detention
order, and subsequently challenged the order of·
detention at the pre-execution stage after a long lapse of
time could take advantage of non-execution and
G
challenge the detention order which remained
unexecuted.
Whether the test of hive nexus developed by this
Court in the context of examining the legality of the order
H
.
598 SUPREME COURT REPORTS
[2013] 17 S.C.R.
A of preventive detention can be automatically applied to
the question of the legality of the execution_ of the
preventive detention orders where there is a
considerable time gap between the passing of the order
of preventive detention and its execution was thus the
8
question involved in these matters.
Disposing of the matters, the Court
HELD:
Per Gyan Sudha Misra, J. [With Chelameswar, J.
C concurring]
1. It is essentially the sufficiency of materials relied
upon for passing the order of detention which ought to
weigh as to whether the order of detention was fit to be
o quashed and set aside and merely the length of time
and lil_>erty to challenge the same at the pre-execution
stage which obviated the execution of the order of
preventive detention cannot be the sole consideration for
holding that the same is fit to be quashed. When a
E proposed detenue is allowed to challenge the order of
detention at the pre-execution stage on any ground
whatsoever contending that the order of detention was
legally unsustainable, the Court will have an occasion to
examine all grounds except sufficiency of the material
F
relied upon by the detaining authorities in passing the
order of detention which legally is the most important
aspect of i:he matter but cannot be gone into by the Court
as it has been allowed to be challenged at the preexecution stage when the grounds of detention has not
even been served on him. [Para 14] [652-C-F]
'G
2. Thus, if it is held that howsoever the grounds of
detention might be weighty and sustainable which
persuaded the authorities to pass the order of detention,
the same is fit to be quashed merely due to long lapse
H of time specially when the detenue is allowed to
SUBHASH POPATLAL DAVE v. UNION OF INDIA · 599
. challenge the order of detention even before the order of A
detention is served on him, he would clearly be offered
with a double-edged weapon to use to his advantage
circumventing the order of detention. On the one hand,
he can challenge the order of detention at the preexecution stage on any ground, evade the detention in
B
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 would_ render the very purpose of preventive c
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
0
relied upon by the authorities for passing the order of
detention so as to contend that at the relevant time wheri
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 not the purpose and object of the Act. [Para 15]
[652-F-H; 653-A-D]
E
F
3. Therefore, the order of detention is not fit to be
quashed and should not be quashed merely due to long
lapse of time but the grounds of detention ought to be
G
served on him once he gains knowledge that the order
of detention is in existence so as to offer him a plank to
challenge even the grounds of detention after which the
courts will have to examine whether the order of
detention which was passed at the relevant time but
H
600
SUPREME COURT REPORTS
(2013] 17 S.C.R.
A could not be served was based on sufficient material
justifying the order of detention .. [Para 16] [653-E-F]
4. Since the order of detention can be challenged on· p'
any ground beyond five conditions even at the preB execution stage, it is in the fitness of things that the
materials relied upon by the authorities be served on the
proposed 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
C 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
D 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
E 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. 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
F detention at the pre-execution stage or had not evaded
arrest, the grounds of detention would have been served
on them giving them a chance to challenge the same but
if the petitioners and appellants have taken recourse to
the legal remedy to challenge the order of detention even
G before it was executed, it is not open for them to
contend that it should be quashed because there is no
live link between the existing/subsequent situation and
the previous situation when the order of detention was
passed overlooking that they s11cceeded in pre-empting
H" the order by challenging it at the pre-execution stage
SUBHASH POPATLAL DAVE v. UNION OF INDIA
601
never allowing the matter to proceed so as to examine
A
the most crucial question whether there were sufficient
material or grounds to pass the order of detention.
Subsequent events or conduct in any view would be a'
matter of consideration for the authorities before whom
the representation is filed after the grounds are served
B
on- the detenue and cannot be gone into when the only
question raised is regarding the correctness and legality
of _the order of detention. [Para 18] [654-E-H; 655-A-F]
5. 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 tiave been
allowed to be challenged even at the pre-execution stage
D
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
E
authorities to pass the orders of detention which were
existing at the relevant time and approve or disapprove
the same. 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
F
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. It would be equally
hypothetical to observe that in case the orders of G
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
602 SUPREME COURT REPORTS
[2013) 17 S.C.R.
A 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
what was delineated
in Alka Subhash Gadia's case as
B also the fact whether the order of detention can be
quashed on the ground of long lapse of time, it would
not be legally appropriate to hold that the order of
detention is fit to be quashed merely because there is no
live link between the existing period and situation and
C the date on which the order of detention was passed.
[Para 19] [655-G-H; 656-A-H; 657-A]
6. It is deemed 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
D 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
E stage after the order of detention is served on the
proposed detenue. 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
F procedure established by law after the grounds of
detention are served on them. [Para 20] [657-C-D, F]
Sunil Fulchand Shah vs. Union of India (2000) 3 SCC
409: 2000 (1) SCR 945;
G
Sayed Taher Bawamiya vs. Govt. of India (2000) 8
sec 630 - overruled.
Hare Ram Pandey vs. State of Bihar & Ors. (2004) 3
SCC 289: 2003 (6) Suppl. SCR 627; Union of India vs. Amrit
H Lal Manchanda & Anr. (2004) 3 SCC 75: 2004 (2) SCR 422;
SUBHASH POPATLAL DAVE v. UNION OF INDIA
603
Union of India vs. Vidya Bagaria (2004) 5 SCC 577: 2004
A
(1) Suppl. SCR 949; Union of India & Ors. vs. Atam Parkash
& Anr. (2009) 1 SCC 585: 2008 (16) SCR 607; Bhawarlal
Ganeshmalji vs. State of Tamil Nadu And Anr. (1979) 1 SCC
465: 1979 (2) SCR 633; Vinod K Chawla vs. Union of India
& Ors. (2006) 7 SCC 337: 2006 (4) Suppl. SCR 651; Union
B
of India vs. Parasmal Rampuria (1998) 8 SCC 402;
Dropti Devi and Anr. vs. Union of India & Ors. (2012) 7
SCC 499: 2012 (6 ) SCR 307 - relied on.
Additional Secretary to the Govt. of India And Ors. vs.
Alka Subhash Gadia And Anr. 1992 Supp (1) SCC 496:
1990 (3) Suppl. SCR 583 - referred to.
Per Chelameswar, J. [Concurring with Gyan Sudha
Misra, J.]
HELD:1. Personal liberty is the most valuable
fundamental right guaranteed under the Constitution.
Deprivation of such liberty is made impermissible by the
Constitution except as authorised under the provisions
c
D
of Articles 20, 21 and 22.
Deprivation of personal liberty
E
by incarceration as a penalty for the commission of an
offence is one of the recognised modes by which State
can abridge the fundamental right of personal liberty.
Even in such case the authority of the state is
circumscribed by tile limitations contained under Articles
F
20 and 21 of the Constitution of India. [Para 7] [659-0-E]
2. Article 22 of the Constitution recognises the
authority of the State to preventively detain a person
notwithstanding the fact that such a person is neither G
convicted for the commission of any offence nor
sentenced in accordance with law. The authority of the
State to resort to such preventive detention is more
stringently regulated by the dictates of Article 22. The
satisfaction of the State to arrive at a conclusion that a
H
. '
604
SUPREME COURT REPORTS
[2013] 17 S.C.R.
···"
A person must be preventively detained is always
subjective. Nonetheless, the legality of such subjective
satisfaction is held by this Court to be amenable to the
judicial scrutiny in exercise of the jurisdiction conferred
under Articles 32 and 226 of the Constitution on certain
B limited grour;ids. [Paras 8 and 9] [659.F-G; 660-B]
3. One of the grounds on which an order of
preventive detention can be declared invalid is that there
is no live nexus between (1) the material which formed
the basis for the State to record its subjective satisfaction,
C 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
D State could not have rationally come to a conclusion that
it is necessary to detain a person without a charge or
trial. [Para 1 OJ [660-C-D]
4. There could be two reasons which may lead to a
E situation by which the preventive detention order passed
by the competent authorities under the various
enactments could remain unexecuted, (1) the absconding
of the proposed detenu from the process of law (2) the
apathy of the authorities responsible for the
F implementation of the preventive detention orders. [Para
14] [661-D]
5. The legislature was conscious of the fact that it
can happen in some cases that the execution of the
preventive detention order could be scuttled by the
G proposed detention either by concealing himself or
absconding from the process of law. Therefore, specific
provisions are made in this regard under various .
enactments dealing with the preventive detention. For
example, Section 7 of the COFEPOSA Act recognises
H such a possibility. It can be seen from the said section
SUBHASH POPATLAL DAVE v. UNION OF INDIA
605
that in a case where proposed detenu is absconding or A
concealing himself, the Government may report the matter
to the Magistrate having jurisdiction over the place where
the proposed detenu ordinarily resides.
On making of
such report by the Government, the provisions of
Sections 82, 83, 84 and 85 of the Code of Criminal B
Procedure apply to the proposed detenu and his
property, as if the order of preventive detention is a
warrant issued by the Magistrate under the provisions of
the Code of Criminal Procedure. In substance, the
property of the propose(! detenu could be attached and C
perhaps even be confiscated in an appropriate case.
[Paras 15, 16 and 17] [661-E-F; 662-F-H; 663-A]
6. 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 D
the reasons for such non-execution, 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) indiyidual against whom an order of E
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. Failure to appear without a reasonable excuse
would be an offence and render the defaulter liable for a
F
punishment of imprisonment. Holding that the preventive
detention orders are themselves rendered illegal, on the
basis of the live nexus theory (which, is valid only. for
examioing the legality of the order, viz-a-viz the date on
which the order is passed) would not only exonerate the G
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.
[Para 19] [663-G]
H
606 SUPREME COURT REPORTS
[2013] 17 S.C.R.
A
7. 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
B 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.
c .Even in those cases where action such as the one
contemplated under Section 7 of the COFEPOSA Act is
not initiated, the same may not be the only consideration
for holding the order of preventive detention illegal.
[Paras 23 and 24] [664-H; 665-A-C]
D
· 8. The question whether the five circumstances
specified .in Atka Subhas(l Gadia case are exhaustive of
the grounds on which a pre-execution scrutiny of the
legality of preventive detention order can be undertaken
was considered earlier in the instant case. It was held that
E the grounds are not exhaustive. But it cannot be held
that such a scrutiny oughf to be undertaken with
reference to the cases of those who evaded the process
of law. [Para 27] [665-G-H; 666-A]
F
Bhawarlal Ganeshmay·; Vs. State of Tamil Nadu & Anr.
(1979) 1 SCC 463; M. Ahamedkutty Vs. Union of India & Anr.
(1990) 2 SCC 1; Union of India & Ors. Vs. Arvind Shergif/ &
Anr. (2000) 7 SCC 601 and Shafiq Ahmad Vs. District
Magistrate, Meerut (1989) 4 SCC 556: 1989 (1) Suppl. SCR
G 56 - relied on.
American Communications Association C.I. 0. vs.
Charles T. Douds [339 US 385) [94 Led 925 at 968] -
referred to.
H
Per Altamas Kabir, CJI. (dissenting)
SUBHASH POPATLAL DAVE v. UNION OF INDIA
607
1. The five exceptions culled out in Atka Subhash
A
Gadia's case were not intended to be exclusive. It was
not the intention of the Hon'ble Judges in Atka 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. The exercise of powers vested in
B
the superior Courts in judicially reviewing executive
decisions and orders cannot be subjected to any c
restrictions, as such powers are untrammelled and
vested in the superior Courts to protect all citizens and
non-citizens, against arbitrary action. The law is never .
static, but dynamic and the right to freedom being one
of the most precious rights of a citizen, the same could
0
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. (Para 39] (635-F-H; 636A-C]
2. 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
Ein economic offences against the Revenue, it would have
F
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. In none of the instant cases, have the ·
Sponsoring Authorities or the Detaining Authorities
G
been able to 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
H
608
SUPREME COURT REPORTS
(2013] 17 S.C.R.
A 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
B 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. [Para 40)
[636-E-H; 637-A]
3. Once immunity from criminal prosecution is
C 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. [Paras 41,
. D 42) [637-G-H; 638-A]
4. It is seen from the provisions of Section 7 of
the COFEPOSA Act that if the appropriate Government
has reason to believe that a person in respect of whom
E a detention order has been made, is absconding, or
is concealing himself so that the order cannot be
executed, the Government may take recourse to the
provisions of Sections 82, 83, 84 and 85 CrPC and his
property, as if the order directing him that he be detained
F were a warrant issued by the Magistrate. Section 7(1)(b)
also provides for penal consequences, in the event
directions given thereunder, are not complied with by
the proposed detenue. Accordingly, Section 7 empowers
the Government to take recourse to either the
provisions of the Code of Criminal Procedure relating
G to absconding persons or pass an order directing the
person concerned to appear before the concerned
officer and on the detenue's failure to do so, to inflict
punishment with imprisonment for a term which could
extend to one year or with fine or both. The provisions
H
SUBHASH POPATLAL DAVE v. UNION OF INDIA
609
of Sections 6 and 7 of the National Security Act, 1980, are
A
identical to the provisions of Sections 6 and 7 of the
COFEPOSA Act, 1974. The said provisions clearly
enumerate the powers vested in the Authorities when a
proposed detenue absconds. That is the ordinary law of
the land, and not preventive detention, which is meant to s
prevent the commission of offences, and not to punish
an individual for violation of statutory provisions.
[Paras 45, 46, 47 and 48] [639-E-H; 640-A-C]
5. There is difference between preventive detention
and the ordinary criminal law providing for detention
C
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
D
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 make him realize the impact
of his earlier indiscretions on society and to discontinue
the same. [Para 49] [640-F-H; 641-A-B]
E
F
G
6. 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
H
610 SUPREME COURT REPORTS
(2013] 17 S.C.R.
A continuance of the validity of detention orders even
after the lapse of several years after the passing .:if. the .
detention order, citing principles such as a person
cannot take advantage of his own wrong, in support
thereof. However, a person evading service of an order
B of preventive detention cannot 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
c detenue is detained without being made an accused in
connection with any particular case, but to prevent him
from committing an .offence, whereas in 1 the second
place, a person actually charged with having committed
an offence is on 'the run to avoid the consequences
D 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. If the intention of
the authorities in passing a detention order is to prevent
the commission of an offence by the proposed detenue
E in the future, then after the passage of a number of years,
the concerned authorities will have to consider
whether the order of preventive detention should at all be
executed in the absence of any information that the
proposed detenue had continued with unlawful
F activities. When the object of a preventive detention order
is to prevent the proposed detenue from committing any
offence, which is either against the national interest or
the interest of society in the future and there is nothing
on record to indicate that the proposed detenue had
G indulged in any such activity after the order of preventive
detention was passed, it would be illogical to pursue the
execution of the detention order as the arrest and
detention of the proposed detenue would become
irrelevant and would not achieve the object for which it
H had been passed. [Para 50] [641-C-H; 642-A-C]
SUBHASH POPATLAL DAVE v. UNION OF INDIA
611
7. The concept of a person being prevented from
A
taking advantage of his own wrong cannot 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. The continued validity of
B
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 . c
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. [Para 51] [642D-F]
8. 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. The 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. Also 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. [Para 52] [643-A-E]
D
E
F
G
H
612
SUPREME COURT REPORTS
[2013] 17 S.C.R.
A
9. The orders of detention challenged in the case at
hand 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
B 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. [Para
C 53) [643-F-G).
Sayed Taher Bawamiya vs. Govt. of India (200Q) 8
sec 630 - not affirmed.
M. Ahamedkutty vs. Union of India (1990) 2 SCC 1: 1990
D (1) SCR 209; Dropti Devi vs. Union of India (2012) 7 SCC
499: 2012 (6) SCR 307 and Union of India vs. Amrit Lal
Manchanda (2004) 3 SCC 75: 2004 (2) SCR 422 -
distinguished.
Addi. Secretary, Govt. of India vs. Atka Subhash Gadia
E (1992) Supp. (1) S'tc 496: 1990 (3) Suppl. SCR 583; Union
of India vs. Atam Prakash & Anr. (2009) 1 SCC 585: 2008
(16) SCR 607; Rekha vs. State of Tamil Nadu (2011) 5 SCC
244: 2011 (4) SCR 740; Maqsood Yusuf Merchant vs.
Union of India (2008) 16 SCC 31; Yusuf Razak Dhanani
F vs. Union of India W.P.(Crl.) No. 132 of 2007; Sanjeev Jain
vs.
Union of India Crl. Appeal No. 1060 of 2010; Asha
Devi vs. 7; K. Shivraj (1979) 1 SCC ~22: 1979 (2) SCR 215;
State of U.P. vs. Kamal Kishore Saini (1988) 1 SCC 287:
1988 (1) SCR 859; Ayya alias Ayub vs. State of U.P. (1989)
G 1 SCC 374: 1988 (3) Suppl. SCR 967; Union of India vs.
Maj. Gen. Madan Lal Yadav (1996) 4 SCC 127: 1996 (3)
SCR 785; Saeed Zakir Hussain Malik vs. State of
Maharashtra (2012) 8 SCC 233: 2012 (7) SCR 235;
Bhawarlal Ganeshmalji vs. State of Tamil Nadu (1979) 1 SCC
H 465: 1979 (2) SCR 633; Union of India vs. Arvind Shergill
SUBHASH POPATLAL DAVE v. UNION OF INDIA
613
(2000) 7 SCC 601; Vinod K.
Chawla vs. Union of India A
(2006) 7 SCC 337: 2006 (4) Suppl. SCR 651; Hare Ram
Pandey vs.
State of Bihar (2004) 3 SCC 289: 2003 (6)
Suppl. SCR 627; Naresh Kumar Goyal vs. Union of India
(2005) 8 SCC 276: 2005 (4) Suppl. SCR 17; Subhash
Muljimal Gandhi vs.
L. Himingliana (1994) 6 SCC 14: B
1994 (2) Suppl. SCR 785; State of Maharashtra vs. Bhavrao
Gawanda (2008) 3 SCC 613: 2008 (3) SCR 967 - referred
to.
Case Law Reference:
In the judgment of Gyan Sudha Misra, J.:
1990 (3) Suppl. SCR 583
referred to
2000 (1) SCR 945
relied on
(2000) 8 sec 630
relied on
2003 (6) Suppl. SCR 627
relied on
2004 (2) SCR 422
relied on
2004 (1) Suppl. SCR 949
relied on
2008 (16) SCR 607
relied on
1979 (2) SCR 633
relied on
2006 (4) Suppl. SCR 651
relied on
(1998) 8 sec 402
relied on
2003 (6) Suppl. SCR 627
relied on
2012 (6) SCR 307
relied on
In the judgment of Chelameswar, J.
(339 us 385)
(1979) 1 sec 463
(1999) 2 sec 1
'
referred to
relied on
relied on
Para 2
Para 2
Para 7
Para 7
Para 8
Para 8
Para 8
Para 9
Para 10
Para 11
Para 12
Para 13
Para 1
Para 20
Para 21
d
D
E
F
G
H
614 SUPREME COURT REPORTS
[2013] 17 S.C.R.
A
(2000) 1 sec 601
relied on
Para 22
1989 (1) Suppl. SCR 56
relied on
Para 24
In the judgment of Altamas Kabir, CJI:
B
1990 (3) Suppl. SCR 583
referred to
Para 2
. , (2000) 8 sec 630
not affirmed
Para 2
2008 (16) SCR 607
referred to
Para 2, 21
.
2011 (4) SCR 740
referrec! to
Para 7
c
~2008) 16 sec 31
referred to
Para 10, 13
.
1979 (2) SCR 215
referred to
Para 20
1988 (1) SCR 859
referred to
Para 20
D
1988 (3) Suppl. SCR 967
referred to
Para 20
1996 (3) SCR 785
referred to
Para 22
2012 (6) SCR 307
distinguished Para 22, 48,
51
E
2012 (7) SCR 235
referred to
Para 23
1979 (2) SCR 633
referred to
Para 23
2004 (2) SCR 422
distinguished Para 24
F
1990 (1) SCR 209
distinguished Para 24
(2000) 1 sec· so1
referred to
Para 24
.
.
2009 (4) Suppl. SCR 651
referred to
Para 24
G
2003 (6) Suppl. SCR 627
referred to
Para 24, 34
2005 (4) Suppl. SCR 17
referred to
Para 24
1994 (2) Suppl. SCR 785
referred to
Para 24
H
2008 (3) SCR 967
referred to
Para 34
SUBHASH POPATLAL DAVE v. UNION OF INDIA
615
CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.) A
No (s) .137 of 2011.
Under Article 32 of The Consitution of India.
WITH
B
W.P. (Crl.) Nos. 138 & 35 of 2011, Crl. A. Nos. 932 & 931 of
2013,
W.P. (Crl.) Nos. 220, 249 of 2011, 14 of 2012,'
Crl. A. No. 930, 961-962 of 2013 & T. C. (Crl.) Nos. 2-3 of c
2013
P. P. Malhotra, ASG, Mukul Rohatgi, B. H. Marlapalle,
Pramod K. Singh, Ravindra Keshavrao Adsure, Saurabh Kirpal,
Dr. G. K. Sarkar, Sanja.Y Agarwal, Karan Bharioke, Malabika
Sarkar, Prashant Srivastav, D. Mahesh Babu, Sujay N. D .
Kantawala, Rakesh Dahiya, Nikhil Jain, Ranjana Narayan, .
Chetan Chawla, Asha G. Nair, B. Krishna Prasad, Arvind4,. ·
. Kumar Sharma, Anita Bafna, Gopal Balwant Sathe, Dr. Kailash ., .
Chand for the Appearing Parties.
The three Judg_ments of the Court were delivered by
,,
.
ALTAMAS KABIR, CJi. 1. L-eave granted in the Special
Leave Petitions. Transfer Petition (Crl.) Nos.38-39 are allowed.
E
2. The common thread which runs through these matters
being heard together is the challenge thrown in each matter to
F
detention orders passed either against the Petitioners
themselves or the persons represented by them. The common
question of law involved in these Appeals, Writ Petitions and
Transfer Petitions is whether a detention qrder passed under
the provisions of the Conservation of Foreign Exchange and G
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 Addi. Secretary, Govt. of India vs.
Alka Subhash Gadia [(1992) Supp. (1) SCC 496], or whether H
A
B
c
D
E
616
SUPREME COURT REPORTS
[2013) 17 S.C.R.
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
those set out in paragraph 30 of the judgment in Alka Subhash
Gadia's case (supra) required further examination. We had
accordingly directed these matters to be listed for final hearing
on all the grounds of challenge directed against the detention
orders.
3. Appearing for the Appellants and the Writ Petitioners,
Mr. Mukul Rohatgi, learned Senior Advocate, submitted that the
question as to whether the five exceptions mentioned in Alka
Subhash Gadia's case (supra) were only illustrative and not
F
exhaustive had already been considered in the common
judgment dated 10th July, 2012, wherein it was also held that
the law is not static, but dynamic. Mr. Rohatgi reiterated his
earlier submission that if a citizen's right to freedom is to be
interfered with in the public interest, such powers would have
G
to be exercised with extra caution and not simply as an
alternative to the ordinary laws of the land.
4. Mr. Rohatgi submitted that if it is to be accepted that
challenge to a detention order could be made at the preexecution stage only on the five exceptions mentioned in Alka
H
Subhash Gadia's case, it would result in restrictions being
SUBHASH POPATLAL DAVE v. UNION OF INDIA
617
[ALTAMAS KABI~, CJI.]
imposed on the powers vested in the Supreme Court under A
Article 32 and in the High Courts under Article 226 of the
Constitution. Mr. Rohatgi submitted that with the passage of
time since the decision rendered in Alka Subhash Gadia's case
in 1992, new grounds of challenge, such as absence of live link
and intervention of Settlement Proceedings under the Customs
B
Act, 1962, have been canvassed which could not have been
contemplated in Alka Subhash Gadia's case and cannot be
ignored in the facts of cases now being brought before the
Courts. Mr. Rohatgi submitted that a detenue must, therefore,
be held to have the right to challenge the detention order c
passed against him, at the preexecution stage, on different
grounds in addition to the five exceptions carved out in Alka
Subhash Gadia's case, but each matter would have to be
considered and decided on its own set of facts.
5. In all these cases, the common refrain is that the object D
sought to be achieved by passing the detention orders, were
no longer relevant and had become otiose, having regard to
the fact that the object of a detention order is not to punish a
citizen for a crime with which he had not been charged, but to
prevent him from committing such crime in the future. Mr.
E
Rohatgi 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
F
and treated as the lead matter, is Writ Petition (Crl.) No.