# STATE OF MAHARASHTRA & ORS v. BHAURAO PUNJABRAO GAWANDE

- **Citation:** [2008] 3 S.C.R. 967
- **Court:** Supreme Court of India
- **Decided:** 2008-03-03
- **Case number:** Criminal Appeal No. 417 of 2008
- **Bench:** C.K. Thakker, Altamas Kabir
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-maharashtra-ors-v-bhaurao-punjabrao-gawande-24754
- **Pages:** 39

## Headnote

Preventive Detention:
A
B
Detention order - Challenge to, at pre-execution or prearrest stage·- Held: Writ court cannot set aside the detention C
order at pre-execution or pre-arrest stage unless court is
satisfied that there are exceptional circumstances - In such
cases, jurisdiction is based on suspicion - Action is taken to
prevent the person from acting in any manner prejudicial to
certain activities under the Detention Law - Ordinarily detenu . D
cannot seek writ of mandamus if he does not surrender and is
not served with detention order and its grounds - On facts,
detaining authority arrived at subjective satisfaction while
passing detention order for indulging in black marketing of
kerosene - Order was not passed for a wrong purpose, Detenu · E
absconded and grounds could not be served - Thus, High
Court erred in quashing the detention order at pre-execution
stage - Order of High Court set aside - Prevention of Black
Marketing and Maintenance of Supplies of Essential
Commodities Act, 1980 :.._ Constitution of India, 1950 - Article F
226.
Detention order - Subjective satisfaction of Detaining
Authority- Judicial review- Scope of- Held: Court can always
examine whether subjective satisfaction is arrived at by the
Detaining Authority- If it is not, the exercise of power would be G
bad - Court cannot go into correctness of facts stated or
·allegations leveled - It is to investigate into circumstances of
suspicion on which such anticipatory action was based.
967
H
968
SUPREME COURT REPORTS
[2008] 3 S.C.R.
A
Preventive Detention - Meaning and concept of
.,
~
The respondent was engaged in the business of
transportation of petroleum products. He was indulging
in black marketing of kerosene oil which was an essential
B
commodity. Several cases were registered against him
under the Essential Commodities Act, 1955. Respondent
executed a bond under the Code of Criminal Procedure,
1973 for good behaviour. Despite that, he continued to
indulge in black marketing of kerosene. The appellant
no.2-Commissioner of Police passed detention order
c under the Prevention of Black Marketing and Maintenance
of Supplies of Essential Commodities Act, 1980 and
directed that the respondent be detained. The grounds
of detention were sought to be served to the detenu on
the same day. The detention order was approved by the
D State Government. Detenu came to know about the
•
detention order passed against him and absconded
t
himself and thus, he could not be detained nor served
with the detention order. Respondent-detenu neither
submitted to the detention order nor surrendered and filed
E writ petition for quashing and setting aside the detention
order being illegal, unwarranted and initiated by malafide.
The High Court set aside the detention order. Hence the
present appeal.
Appellant-State contended that the High Court erred
..
F in exercising jurisdiction under Article 226 of the
Constitution against an order of detention at a prey
ex~cution stage; that the preliminary objection raised by
the Detaining Authority was well founded; that High Court
ought to have taken into consideration that the order could
G not be served upon the detenu; that the detenu
absconded himself and successfully avoided service of
order of detention, grounds of detention and relevant
documents in support of the order, therefore, the
~ ....
authorities were constrained to affix the order at a
H conspicuous place of residence of the detenu; that
STATE OF MAHARASHTRA & ORS. v. BHAURAO
969
PUNJABRAO GAWANDE
several cases had been instituted against the detenu A
under the 1955 Act; that the consistent conduct of the
detenu revealed that he continued to indulge in black
marketing activities; that the preventive action was called
for; that the High Court was not right in observing that
there was 'custodial violence' by police authorities when s
he was arrested in connection with a criminal matter and
the same does not make detention order vulnerable; that
the High Court was not ri

## Text

_Characters 0–39,987 of 80,284. This is a partial read: ask again with offset=39987 for what follows._

•
(
. -;
[2008] 3 S.C.R. 967
STATE OF MAHARASHTRA & ORS.
v.
BHAURAO PUNJABRAO GAWANDE
(Criminal Appeal No. 417 of 2008)
MARCH 3, 2008
(C.K. THAKKER AND ALTAMAS KABIR, JJ.]
Preventive Detention:
A
B
Detention order - Challenge to, at pre-execution or prearrest stage·- Held: Writ court cannot set aside the detention C
order at pre-execution or pre-arrest stage unless court is
satisfied that there are exceptional circumstances - In such
cases, jurisdiction is based on suspicion - Action is taken to
prevent the person from acting in any manner prejudicial to
certain activities under the Detention Law - Ordinarily detenu . D
cannot seek writ of mandamus if he does not surrender and is
not served with detention order and its grounds - On facts,
detaining authority arrived at subjective satisfaction while
passing detention order for indulging in black marketing of
kerosene - Order was not passed for a wrong purpose, Detenu · E
absconded and grounds could not be served - Thus, High
Court erred in quashing the detention order at pre-execution
stage - Order of High Court set aside - Prevention of Black
Marketing and Maintenance of Supplies of Essential
Commodities Act, 1980 :.._ Constitution of India, 1950 - Article F
226.
Detention order - Subjective satisfaction of Detaining
Authority- Judicial review- Scope of- Held: Court can always
examine whether subjective satisfaction is arrived at by the
Detaining Authority- If it is not, the exercise of power would be G
bad - Court cannot go into correctness of facts stated or
·allegations leveled - It is to investigate into circumstances of
suspicion on which such anticipatory action was based.
967
H
968
SUPREME COURT REPORTS
[2008] 3 S.C.R.
A
Preventive Detention - Meaning and concept of
.,
~
The respondent was engaged in the business of
transportation of petroleum products. He was indulging
in black marketing of kerosene oil which was an essential
B
commodity. Several cases were registered against him
under the Essential Commodities Act, 1955. Respondent
executed a bond under the Code of Criminal Procedure,
1973 for good behaviour. Despite that, he continued to
indulge in black marketing of kerosene. The appellant
no.2-Commissioner of Police passed detention order
c under the Prevention of Black Marketing and Maintenance
of Supplies of Essential Commodities Act, 1980 and
directed that the respondent be detained. The grounds
of detention were sought to be served to the detenu on
the same day. The detention order was approved by the
D State Government. Detenu came to know about the
•
detention order passed against him and absconded
t
himself and thus, he could not be detained nor served
with the detention order. Respondent-detenu neither
submitted to the detention order nor surrendered and filed
E writ petition for quashing and setting aside the detention
order being illegal, unwarranted and initiated by malafide.
The High Court set aside the detention order. Hence the
present appeal.
Appellant-State contended that the High Court erred
..
F in exercising jurisdiction under Article 226 of the
Constitution against an order of detention at a prey
ex~cution stage; that the preliminary objection raised by
the Detaining Authority was well founded; that High Court
ought to have taken into consideration that the order could
G not be served upon the detenu; that the detenu
absconded himself and successfully avoided service of
order of detention, grounds of detention and relevant
documents in support of the order, therefore, the
~ ....
authorities were constrained to affix the order at a
H conspicuous place of residence of the detenu; that
STATE OF MAHARASHTRA & ORS. v. BHAURAO
969
PUNJABRAO GAWANDE
several cases had been instituted against the detenu A
under the 1955 Act; that the consistent conduct of the
detenu revealed that he continued to indulge in black
marketing activities; that the preventive action was called
for; that the High Court was not right in observing that
there was 'custodial violence' by police authorities when s
he was arrested in connection with a criminal matter and
the same does not make detention order vulnerable; that
the High Court was not right that no other steps had been
considered by the Authorities; and that the detenu was
directed to execute a bond of good behaviour and such c
bond was executed by him.
Respondent-detenu
contended
that in
an
appropriate case, if the Court is satisfied that the detention
order is ex-facie illegal, void, without jurisdiction or
actuated by mala tides, the Court has jurisdiction to grant D
relief to the detenu even if the order is not executed and
the person is not served with such order; that the High
Court was satisfied that one of the exceptions carved out
by this Court in Alka Subhash Gadia's case had been
made out and the Court exercised the power which E
cannot be said to be illegal or contrary to law; that when
it was alleged by the detenu that there was 'custodial
violence' by police authorities, such complaint and the
requisite materials should have been placed before the
Detaining Authority and the Detaining Authority was F
bound to consider them; that if no such material was
placed before the Authority or was placed but not
considered by the Detaining Authority, there was nonapplication of mind on the part of the Authority and it can
be concluded that the order was passed for a 'wrong G
purpose' and was liable to be set aside; and that no
allegation had been. made by appellants that subsequent
to the setting aside of the detention order, detenu has
indulged in black-marketing activities.
Allowing the appeal, the Court
H
970
SUPREME COURT REPORTS
[2008) 3 S.C.R.
A
HELD: 1.1 The order of detention has been made
~
~
against the detenu in exercise of power under the
Prevention of Black Marketing and Maintenance of
Supplies of Essential Commodities Act, 1980 since the
Detaining Authority was satisfied that detention of the writ8 petitioner was necessary "with a view to preventing him
from acting in any manner prejudicial to the maintenance
t
of supplies of commodities to the community" i.e. selling
o'f kerosene in black market. Such order must be
'preventive' and not 'punitive' in nature. But the Court
c must be conscious and mindful that the satisfaction of
the Detaining Authority is 'subjective' in nature and the
Court cannot substitute its 'objective' opinion for the
subjective satisfaction of Detaining Authority for coming
to the conclusion whether the activities of the detenu were
D or were not prejudicial to the maintenance of supplies of
..
essential commodities to the society. [Para 16] [982-G;
983-A, B, C]
1.2. Subjective satisfaction being a condition
precedent for the exercise of the power of preventive
E detention conferred on the executive, the Court can
always examine whether the requisite satisfaction is
arrived at by the authority; if it is not, the condition
precedent to the exercise of the power would not be
fulfilled and the exercise of the power would be bad. A
I..
F Court cannot go into correctness or otherwise of the facts
stated or allegations leveled in the grounds in support of
r
detention. A Court of Law is 'the last appropriate tribunal
to investigate into circumstances of suspicion on which
such anticipatory action must be largely based.' However,
G that does not mean that the subjective satisfaction of
Detaining Authority is wholly immune from judicial
reviewability. The courts have carved out areas, though
limited, within which the validity of subjective satisfaction
I
""
can be tested judicially. [Paras 31, 32 and 33] [990-C, D, E, F]
H
1.3 An order of detention can be challenged on
STATE OF MAHARASHTRA & ORS. v. BHAURAO
971
PUNJABRAO GAWANDE
'1
certain grounds, such as, the order is not passed by the A
""
competent authority, condition precedent for the exercise
of power does not exist; subjective satisfaction arrived.
at by the Detaining Authority is irrational, the order is mala
fide; there is non-application of mind on the part of the
Detaining Authority in passing the order; the grounds are,
B
or one of the grounds is, vague, indefinite, irrelevant,
J
4extraneous, non-existent or stale; the order is belated;
the person against whom an order is passed is alrea{!y in
jail; the order is punitive in nature; the order is not
approved by State/Central Government as required by c
law; failure to refer the case of the detenu to the Board
constituted under the statute; the order was quashed/
revoked and again a fresh order of detention was made
without new facts, etc. [Para 34] [990-F, G, H, 991-A, B]
1.4 With regard to the question whether actual D
..
i
detention of a person against whom an o_rder of detention
is made is sine qua non or condition precedent for
approaching a Court of Law, normally and as a general
rule, an order of detention can be challenged by the
detenu after such order as also the grounds of detention E
have been received by him and the order is executed. In
exceptional cases, however, a High Court or this Court
may exercise extra-ordinary powers to protect a person
J
against an illegal invasion of his right to freedom by
protecting him while still he is free by issuing an
F
'{
appropriate writ, direction or order including a writ in the
nature of mandamus questioning an order of detention
and restraining the authorities from interfering with the
right of liberty of an individual against whom such order
is made. [Paras 35 and 36] [991-D, E, F, G] ·
G
Kiran Pasha v. Government of A.P (1990) 1 SCC 328;
Addi. Secretary to the Government of India and Ors. vs. Smt.
"""'
.Ji
Alka Subhas Gadia and Anr. 1992 Supp (1) SCC 496 -
referred to.
H
A
972
SUPREME COURT REPORTS
[2008) 3 S.C.R.
1.5 The submission that on the facts and in the
circumstances of the case, the High Court was right in
holding that exception (iii) in Alka Subhash Gadia got
attracted inasmuch the order was passed for wrong
purpose cannot be accepted. With regard to the authority
B of the Commissioner of Police, the High Court was
satisfied that the order was passed by the authority
competent to exercise the power. It was also clear that
the order was passed 'under the Act' since the Detaining
Authority was satisfied that the detention of the writ
c petitioner was necessary 'with a view to preventing him
from acting in any manner prejudicial to the maintenance
of supplies of essential commodities to the community'
i.e. kerosene. The grounds cannot be said to be vague,
extraneous irrelevant or non-existent. In fact, the detenu
D absconded and grounds could not be served. It is not
even alleged that the order is sought to be executed
against a wrong person. (Paras 42 and 43] (997-B, C, D, E, F]
1.6 The detenu submitted before the High Court that
certain offences had been registered against the detenu
E and they were under investigation; that the report of the
Chemical Analyzer was not received and yet the Detaining
Authority took into account those cases; that offences
were registered against the detenu in July, 2003,
September, 2005 and May, 2006 and no preventive action
F was thought necessary to be taken by the authority at
any stage; that it was when the detenu was arrested in
2006 and a complaint was made against 'custodial
violence' meted out to him by police authorities while he
was in custody; that with a view to save the skin of erring
G police officials an illegal order of detention was passed,
thus, it was made for 'wrong purpose' and not with a view
to prevent the writ petitioner from indulging in black
marketing of kerosene. The High Court found
'considerable force' in the submission and held that the
order was passed for wrong purpose. The High Court
H
• •
. '
STATE OF MAHARASHTRA & ORS. v. BHAURAO
973
PUNJABRAO GAWANDE
went wrong in observing that once a detenu had made A
allegations against the police atrocities and custodial
violence, the Detaining Authority ought to have waited till
the inquiry was conducted and report submitted. It also
erred in holding that two parallel and simultaneous
proceedings were not permissible in law. [Paras 44 B
and 46] [997-F, G; 998-A, B, C; 999-A]
Hardhan Saha v. State of WB. 1975 (3) SCC 198 -
followed.
Biram Chand v State of UP & Ors (1974) 4 SCC 573 - c
referred to.
1.7 Considering the facts on record in their entirety,
it is clear that many cases had been filed against the
detenu under the 1955 Act. It was alleged that the writ
petitioner was indulging in illegal activities of black D
marketing of kerosene which was an essentia.I
commodity. Those cases had been registered in 2002,
2003, 2005 and 2006. Thus, the action was taken on the
basis of past conduct of the detenu having reasonable
prognosis of future behaviour and there was 'live link' E
between the activities of the detenu and the action of-.
preventive detention to reach subjective satisfaction by
the Detaining Authority. It has come on record that the
detenu was called upon to execute a bond for good
behaviour under sections 110 and 111 of the Code of F
Criminal Procedure, 1973. Therefore, it is clear that the
authorities had taken steps under the relevant law. But
even otherwise, such questions may become relevant anJ
can be considered after the order of detention is executed.
[Para 48] [1001-A, B, C, D]
G
1.8 The detention of the writ-petitioner would not be
affected if the detenu was ill-treated when he was in
custody in connection with any case registered against
him under the 1955 Act, or there was custodial violence.
Whether there was such custodial violence and whether H
974
SUPREME COURT REPORTS
[2008) 3 S.C.R.
A police officers had abused their position can indeed be
r
gone into by a competent authority or by a Court of law.
.,
That circumstance, however, will not make the order of
detention invalid or for a 'wrong pwrpose'. Externment
proceedings initiated against the detenu under section
B 59 of the Bombay Police Act, 1951 also would not make
the action assailable. Therefore, this was not a case in
which interference was warranted at pre-execution stage.
[Para 49) [1001-D, E, F]
1.9 As a general rule, an order of detention passed
c by a Detaining Authority under the relevant 'preventive
detention' law cannot be set aside by a Writ Court at the
pre-execution or pre-arrest stage unless the Court is
satisfied that there are exceptional circumstances
specified in Atka Subhash Gadia's case. The Court must
D be conscious and mindful of the fact that this is a
..
'suspicious jurisdiction' i.e. jurisdiction based on
t
suspicion and an action is taken 'with a view to prewmt' a
person from acting in any manner prejudicial to ctJrtain
activities enumerated in the relevant detention law.
E Interference by a Court of Law at that stage must be an
exception rather than a rule and such an exercise can be
undertaken by a Writ Court with extreme care, caution and
circumspection. A detenu cannot ordinarily seek a writ of
mandamus if he does not surrender and is not served with
an order of detention and the grounds in support c1f such
...
F
order. The instant case does not fall within the category
)'
of exceptional cases and the High Court exceeded its
jurisdiction in entertaining the writ-petition and in
quashing and setting aside the order of detention at preG execution stage and pre-arrest stage. Therefore, the order
of the High Court setting aside the detention order is set
aside. It is open to the authorities to execute the order of
detention. It is equally open to the detenu to challenge
• ..
the legality thereof on all available grounds. [Paras 58
H and 59) [1004-G; 1005-A, B, C, D, E]
STATE OF MAHARASHTRA & ORS. v. BHAURAO
975
PUNJABRAO GAWANDE
'I
Addi. Secretary to the Government of India and Ors. vs.
A
'
Smt. Atka Subhas Gadia and Anr. 1992 Supp (1) SCC 496;
A.K. Roy v. Union of India 1982 (1) SCC 271; Attorney General
for India v. Amritla/ Pranjivandas 1994 (5) SCC 54; Bhut Nath
v. State of West Bengal 1974 (3) SCR 315; State of WB. v.
Ashok Dey, 1972 (2) SCR 434; ADM Jaba/pur v. Shirakant B
Shukla 1976 Supp SCR 132 - relied on.
~
Sapmawia v. Deputy Commissioner, Aijal 1971 (1) SCR
690; Khudiram Das v. State of WB., 1975 (2) SCR 832;
Naresh Kumar Goyal v. Union of India 2005 (8) SCC 276;
Subhash Muljimal Gandhi v. L. Himingliana & Anr. (1994) 6 c
SCC 14; State of Bihar v. Ram Balak Singh (1966) 3 SCR
344; Rajinder Arora v. Union of India & Ors (2006) 4 SCC ·
796; K.S. Mangamuthu v. State of Tamil Nadu & Ors (2006) 4
sec 792 - referred to.
R. V Home Secretary 1999 (2) AC 38 : 1997 (1) WLR D
• ,
503; Cox v. Hakes 1890 (15) AC 506 : 60 LJQB 89; R V.
Secretary of State for Home Affairs; ex parte O'Brien, 1923 (2)
KB 361; Darnel, Re 1927 (3) St Tr. 1; Greene v. Secretary of
State for Home Affairs 1941 (3) All ER 388 : 1942 AC 284 -
E
referred to.
Halsbury's Laws of England 4th Edn., Vol. 11, para 1454,
p. 769 - referred to.
...
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
F
No. 417 of 2008.
y'
From· the final Judgment and Order dated 17.10.2006 of
the High Court of Judicature at Bombay, Nagpur Bench, Nagpur
in Criminal Writ Petition No. 372 of 2006.
Manish Pitale and Ravindra Keshavrao Adsure for the G
Appellants.
~
J.M. Gandhi, SatyajitA. Desai, Anagha S. Desai, Amol N.
Suryawanshi and Venkateswara Rao Anumolu for the
Respondent.
H
A
976
SUPREME COURT REPORTS
[2008] 3 S.C.R.
The Judgment of the Court was delivered by
C.K. THAKKER, J. 1. Leave granted.
2. The present appeal is filed by the State of Maharashtra
and others against the sole respondent (original petitioner)
B against the judgment and order passed by the High Court of
Judicature at Bombay (Nagpur Bench) on October 17, 2006 in
Writ Petition No. 372 of 2006. By the impugned order, the High •
Court (partly) allowed the petition filed by the detenu-writ
petitioner and set aside the order of detention dated July 27,
c 2006 passed by the Commissioner of Police (Nagpur City)
under the Prevention of Black Marketing and Maintenance of
Supplies of Essential Commodities Act, 1980.
FACTUAL MATRIX
0
3. The case of the appellants is that one Bhaurao
Punjabrao Gawande (detenu) was running a business of
transportation of petroleum products and had fleet of tankers
for carrying on the said occupation. He was indulging in illegal
purchase and sale of blue kerosene oil in black market since
'"
E last five to six years. Certain cases were also registered against
the said Bhaurao under the Essential Commodities Act, 1955
(hereinafter referred to as '1955 Act'). In view of continuous
activities of Bhaurao in black-marketing of essential commodity
(Kerosene), the Commissioner of Police (appellant No.2 herein),
in exercise of power conferred on him by sub-section (1) read
F
with Clause (b) of sub-section (2) of the Prevention of Black
Marketing and Maintenance of Supplies of Essential ...,
Commodities Act, 1980 (hereinafter referred to as 'the Act')
directed that the said Bhaurao be detained. Grounds of detention
were sought to be served to the detenu on the same day.
G
4. According to the appellants, in accordance with subsection (3) of Section 3 of the Act, the order of detention passed
by the Commissioner of Police was approved by the State
Government. The detenu somehow came to know about the '
H order of detention being passed again him and absconded
•
...
STATE OF MAHARASHTRA & ORS. v. BHAURAO
977
PUNJABRAO GAWANDE [C.K. THAKKER, J.]
i
himself. He, therefore, could not be detained, nor served with
A
~
the order or grounds of detention in support of the order.
WRIT PETITION
5. The detenu, without submitting to the order of detention
and surrendering, filed Writ Petition No. 372 of2006 in the High
B
~
Court of Bombay (Nagpur Bench) for an appropriate writ,
direction or order quashing and setting aside the order of
detention dated July 27, 2006 being illegal, unwarranted and
vitiated by mala fide. Other reliefs were also sought.
COUNTER AFFIDAVIT
c
6. An affidavit in reply was filed by the Detaining Authority,
inter atia, contending _that the petition filed by the detenu was
not maintainable at law. The detenu got the information about
the order of detention, absconded himself and the order of D
•
detention could not be served upon him. The order was,
~
therefore, affixed at a conspicuous place at the res-idence of
the detenu on July 30, 2006 and a panchanama was drawn by
the Police Inspector of Sakkardara Police Station, Nagpur. Since
the detenu was not available, grounds of detention along with
E
relevant documents also could not be served upon him. It was
stated that the order of detention was approved by the State
Government. Moreover, the entire proceedings of detention
were submitted to the Advisory Board constituted under Section
4
10 of the Act as required by law. The Government decided the
period of detention only after the opinion of the Advisory Board
F
"<:
under Section 12 of the Act.
7. On merits, it was contended on behalf of the Detaining
Authority that the detenu was indulging in black marketing of
kerosene oil which was an 'essential commodity' and several G
cases had been registered against him. It was also stated that
the detenu had executed a bond under the Code of Criminal
~
(
Procedure, 1973 for good behaviour. In spite of all these steps,
the detenu continued to indulge in black marketing activities of
essential commodity and the Detaining Authority was satisfied
H
978
SUPREME COURT REPORTS
[2008] 3 S.C.R.
A that "with a view to preventing him from acting in any manner
,_
prejudicial to the maintenance of supplies of essential
•
commodities to the community'', it was necessary to detain him
and accordingly the order was passed. It was, therefore,
submitted that the petition was liable to be dismissed, particularly
B when the detenu absconded and the order of detention along
with grounds of detention and other documents could not be
personally served and could not be executed.
+
HIGH COURT JUDGMENT
c
8. The High Court, by the impugned order, held that the
detenu was not entitled to know the grounds on which the order
of detention had been passed, unless he surrendered. The
Court, however, proceeded to state that it perused the grounds
of detention with a view to satisfy itself about the legality of the
D order of detention. The Court noted that the authorities made
the record available to the Court and the Court had 'carefully'
•
~
examined it. The Court then concluded;
"We find that the present petition can be entertained at
pre-execution stage".
E
9. The High Court considered the relevant provisions of
the Act as also the Maharashtra Kerosene Dealers' Licensing
Order, 1966 and the Kerosene (Restriction on Use and Fixation
of Ceiling Price) Order, 1993. It observed that if the cases
F
instituted against the detenu were taken into consideration by
,..
the Detaining Authority, it could not be said that the Detaining
Authority could not have reached 'subjective satisfaction' on that
'
basis and as such the order could not be challenged. The High
Court also conceded that normally, a Court would not interfere
with the order of detention at pre-execution stage. It, however,
G held that the present case was covered by one of the exceptions
laid down in Addi. Secretary to the Government of India & Ors.
v. Smt. Atka Subhash Gadia & Anr, 1992 Supp (1) SCC 496
and hence the petition was maintainable and the detenu was
•
entitled to relief. The High Court accordingly set aside the order
H of detention. The legality of said order is questioned by the
STATE OF MAHARASHTRA & ORS. v. BHAURAO
979
PUNJABRAO GAWANDE [C.K. THAKKER, J.]
f
t
Authorities in the present appeal.
A
PREVIOUS ORDERS
10. On February 12, 2007, when the matter was placed
for admission hearing, notice was issued and was made
returnable within three weeks. On August 13, 2007, four weeks B
t
time was sought by the detenu for filing counter affidavit. The
Court, however, passed the following order;
"The matter relates to grant of relief by the High Court
under Article 226 of the Constitution at pre-arrest stage. c
This Court had issued notice on February 12, 2007.
On the facts and in the circumstances of the case, in our
opinion, we should not grant four weeks' time as prayed
for. Two weeks' time is granted, as a last chance, for filing
..
counter affidavit.
D
..
List thereafter".
11. Affidavit-in-reply was thereafter filed. On December 13,
2007, the Registry was directed to list the matter for final hearing
in the first week of February, 2008 on a non-miscellaneous day E
and that is how the matter is before us.
12. We have heard learned counsel for the parties.
APPELLANTS' SUBMISSIONS
,
13. The learned counsel for the appellants strenuously F
"
contended that the High Court was wholly in error in exercising
jurisdiction under Article 226 of the Constitution against an order
of detention at a pre-execution stage. It was submitted that the
preliminary objection raised by the Detaining Authority was well
founded that the High Court should not have entertained the writ G
petition and set aside the order of detention before the order
could be executed against the detenu. It was also submitted
~ .
that an important factor which ought to have been taken into
consideration by the High Court that the order could not be
served upon the detenu, was a material factor. The detenu H
980
SUPREME COURT REPORTS
[2008] 3 S.C.R.
A absconded himself and successfully avoided service of order
of detention, grounds of detention and relevant documents in
•
support of the order. The authorities were, therefore, constrained
to affix the order at a conspicuous place of residence of the
detenu. The said factor was crucial and the High Court should
B have refused to exercise jurisdiction in favour of the detenu.
14. On merits, it was contended that several cases had
been instituted against the detenu under the 1955 Act and
consistent conduct of the detenu revealed that he continued to
indulge in black marketing activities. If it is so, a preventive action
c under the Act was called for and such action could not have
been interfered with by the High Court. It was also submitted
that the High Court was not right in observing that the detenu
was ill-treated when he was arrested in connection with Crime
No. 3022 of 2006 at Police Station, Wadi (Nagpur) and there
D was 'custodial violence' by police authorities. But, even if it is
..
assumed to be true, the detenu could have taken appropriate
;.
action in accordance with law. That, however, does not make
order of detention vulnerable. The counsel also contended that
the High Court was not right that no other steps had been
E considered by the authorities. In fact, the detenu was directed
to execute a bond of good behaviour and such bond was also
executed by him. It was, therefore, submitted that the order
passed by the High Court deserves to be set aside by allowing
the Detaining Authority to execute the order of detention against
..
F the detenu and by granting liberty to the detenu to challenge the
order by taking appropriate action in accordance with law
'
against such detention.
RESPONDENT'S SUBMISSION
G
15. Learned counsel for the respondent-detenu, on the
other hand, supported the order of the High Court. He submitted
that normally a High Court or this Court, in exercise of
extraordinary powers under Article 226 or 32 of the Constitution
, ,.
does not interfere with an order of detention at pre-execution
H stage. But, there is no restriction, limitation or prohibition on the
STATE OF MAHARASHTRA & ORS. v. BHAURAO
981
PUNJABRAO GAWANDE [C.K. THAKKER, J.]
>f
power of the Court in exercising constitutional powers. It is a A
•
self-imposed limitation by Courts themselves. In an appropriate
case, however, if the Court is satisfied that the order is ex-facie
illegal, void, without jurisdiction or actuated by mala fides, the
Court has jurisdiction to grant relief to the detenu even if the
order is not executed and th.e person is not served with such
B
order. In the case on hand, the learned counsel submitted, the
._ High Court was satisfied that one of the exceptions carved out
by this Court in Atka Subhash Gadia had been made out and
the Court exercised the power which cannot be said to be illegal
or contrary to law. It was also submitted that when it was alleged C
by the detenu that there was 'custodial violence' by police
authorities, such complaint and the requisite materials should
have been placed before the Detaining Authority and the
Detaining Authority was bound to consider them. If no such
material was placed before the authority or was placed but not 0
• .f
considered by the Detaining Authority, there was non- application
of mind on the part of the authority and it can be concluded that
the order was passed for a 'wrong purpose' and was liable to
be set aside. Finally, it was submitted that the order of detention
was set aside by the High Court on October 17, 2006 and no
allegation had been made by the appellants that subsequent to
E
the said order, the detenu has indulged in black-marketing
activities. Hence, even if this Court is convinced that the High
Court was not right in exercising jurisdiction at pre-execution
,
stage, this Court may not interfere with the decision of the High
y
Court.
F
WHETHER HIGH COURT WAS RIGHT IN QUASHING
ORDER OF DETENTION?
16. Having heard learned counsel for the parties and having
given anxious consideration to the facts and circumstances of G
the case, we are clearly of the view that the High Court exceeded
its jurisdiction in entertaining the writ-petition and in quashing
• '
and setting aside the order of detention at pre-execution stage.
It cannot be gainsaid that the order of detention has been made
against the detenu in exercise of power under the Act since the
H
982
SUPREME COURT REPORTS
[2008] 3 S.C.R.
A Detaining Authority was satisfied that detention of the writ-"'
petitioner was necessary "with a view to preventing him from
•
acting in any manner prejudicial to the maintenance of supplies
of commodities to the community" i.e. selling of kerosene in
black market. True it is that such order must be 'preventive' and
B not 'punitive' in nature. But the Court must be conscious and
mindful that the satisfaction of the Detaining Authority is
'subjective' in nature and the Court cannot substitute its'
'objective' opinion for the subjective satisfaction of Detaining
Authority for coming to the conclusion whether the activities of
C the detenu were or were not prejudicial to the maintenance of
supplies of essential commodities to the society. It would,
therefore, be appropriate if we consider the concept of and
relevant principles governing 'preventive detention'.
PERSONAL LIBERTY : PRECIOUS RIGHT
D
17. There can be no doubt that personal liberty is a ~ •
precious right. So did the Founding Fathers believe because,
while their first object was to give unto the people a Constitution
whereby a Government was established, their second object,
equally important, was to protect the people against the
E Government. That is why, while conferring extensive powers on
the Government like the power to declare an emergency, the
power to suspend the enforcement of Fundamental Rights or
the power to issue Ordinances, they assured to the people a
Bill of Rights by Part Ill of the Constitution, protecting against
4.
F executive and legislative despotism those human rights which
they regarded as 'fundamental'. The imperative necessity to "
protect those rights is a lesson taught by all history and all human
experience. Our Constitution makers had lived through bitter
years and seen an alien government trample upon human rights
G which the country had fought hard to preserve. They believed
like Jefferson that "an elective despotism was not the
government we fought for." And therefore, while arming the
Government with large powers to prevent anarchy from within '
and conquest from without, they took care to ensure that those
H powers were not abused to mutilate the liberties of the people
•
STATE OF MAHARASHTRA & ORS. v. BHAURAO
983
PUNJABRAO GAWANDE [C.K. THAKKER, J.]
•
[vide A.K. Roy v. Union of India, (1982) 1 SCC 271; Attorney A
General for India v. Amritlal Pranjivandas, (1994) 5 SCC 54].
18. It has been observed in R. v. Home Secretary, (1999)
2 AC 38 : (1997) 1 WLR 503,
"The imposition of whatis in effect a substantial term of 8
imprisonment by the exercise of executive discretion,
lwithout trial, lies uneasily with ordinary concepts of the
rule of law".
HABEAS CORPUS : FIRST SECURITY OF CIVIL
LIBERTY
c
19. The celebrated writ of habeas corpus has been
described as "a great constitutional privilege" or "the first security
of civil liberty". The writ provides a prompt and effective remedy
.. t
against illegal detention. By this writ, the Court directs the person D
or authority who has detained another person to bring the body
of the prisoner before the Court so as to enable the Court to
decide the validity, jurisdiction or justification for such detention. ·
The principal aim of the writ is to ensure swift judicial review of
alleged unlawful detention on liberty or freedom of the prisoner E
ordetenu.
20. In Cox v. Hakes, (1890) 15 AC 506 : 60 LJQB 89,
Lord Halsbury propounded:
"For a period extending as far back as our legal history,
F
the writ of habeas corpus has been regarded as one of
the most important safeguards of the liberty of the subject.
If upon the return to that writ it was adjudged that no legal
ground was made to appear justifying detention, the
consequence was immediate release from custody: If
release was refused, a person detained might make a G
fresh application to every judge or every Court in turn, and
' {
each Court or Judge was bound to consider the question
independently and not to be influenced by the previous,
decisions refusing discharge. If discharge followed, the
legality of that discharge. could never .be brought in
H
984
SUPREME COURT REPORTS
(2008] 3 S.C.R.
A
question. No writ of error or demurrer was allowed."
~
21. In R v. Secretary of State for Home Affairs; ex parte
O'Brien, (1923) 2 KB 361 : 1923 AC 603 : 92 LJKB 797,
Scrutton, LJ observed: 'The law in the country has been very
B
zealous of any infringement of personal liberty. This case is not
to be exercised less vigilantly, because the subject whose liberty
is in question may not be particularly meritorious. It is indeed
one test of belief in principles if you apply them to cases with
which you have no sympathy at all. You really believe in freedom
of speech, if you are willing to allow it to men whose opinion
c seem to you wrong and even dangerous; and the subject is
entitled only to be deprived of his liberty by due process of law,
although that due process if taken will probably send him to
prison. A man undoubtedly guilty of murder must yet be released
if due forms of law have not been followed in his conviction. It is
D quite possible, even probable, that the subject in this case
•
is guilty of high treason; he is still entitled only to be
t
deprived of his liberty by due process of law". (emphasis
supplied)
E
22. As early as in 1627, the following memorable
observations were made by Hyde, C.J. in Darnel, Re, (1927) 3
StTr. 1:
"W~ether the commitment be by the King or others, this
Court is a place where the King doth sit in person, and we
F
have power to examine it, and if it appears that any man
hath injury or wrong by his imprisonment, we have power
to deliver and discharge him, if otherwise, he is to be
remanded by us to prison".
23. In Halsbury's Laws of England, (41h Edn., Vol.11, para
G 1454, p.769), it is stated:
"In any matter involving the liberty of the subject the action
of the Crown or its ministers or officials is subject to the
' '
supervision and control of the judges on habeas corpus.
H
The judges owe a duty to safeguard the liberty of the subject
STATE OF MAHARASHTRA & ORS. v. BHAURAO
985
PUNJABRAO GAWANDE [C.K. THAKKER, J.]
~
not only to the subjects of the Crown, but also to all persons A
)
within the realm who are under the protection of the Crown
and entitled to resort to the courts to secure any rights
which they may have, and this whether they are alien
friends or alien enemies. It is this fact which means the
prerogative writ of the highest constitutional impo'rtance,
B
itbeing a remedy available to the lowliest subject against
the most powerful. The writ has frequently been used to
test the validity of acts of the executive and, in particular,
to test the legality of detention under emergency legislation.
No peer or lord of Parliament has privilege of peerage or c
Parliament against being compelled to render obedience
to a writ of habeas corpus directed to him".
24. In Greene v. Secretary of State for Home Affairs,
(1941) 3 All ER 388 : 1942 AC 284, Lord Wright observed:
'~'
"The inestimable value of the proceedings is that it is the D
most efficient mode ever devised by any system of law to
end unlawful detainments and to secure a speedy release
where the circumstances and the law so required''.
25. The underlying object of the writ of habeas corpus has
E
been succinctly explained by Dua, J. in Sapmawia v. Deputy
Commissioner, Aija/, (1971) 1 SCR 690, in the following words:
"The writ of habeas corpus is a prerogative writ by which,
the causes and validity of detention of a person are
F
investigated by summary procedure and if the authority
•.
having his custody does not satisfy the court that the
deprivation of his personal liberty is according to the
procedure established by law, the person is entitled to his
liberty. The order of release in the case of a person
suspected of or charged with the commission of an offence G
does not per se amount to his acquittal or discharge and
\ '
the authorities are not, by virtue of the release only on
habeas corpus, deprived of the power to arrest and keep
him in custody in accordance with law for this writ is not
designed to interrupt the ordinary administration of criminal
H
986
SUPREME COURT REPORTS
[2008] 3 S.C.R.
A
law".
PREVENTIVE DETENTION
MEANING AND
CONCEPT
26. There is no authoritative definition of 'preventive
B detention' either in the Constitution or in any other statute. The
expression, however, is used in contradistinction to the word
'punitive'. It is not a punitive or penal provision but is in the nature
of preventive action or precautionary measure. The primary
object of preventive detention is not to punish a person for having
c done something but to intercept him before he does it. To put it
differently, it is not a penalty for past activities of an individual
but is intended to pre-empt the person from indulging in future
activities sought to be prohibited by a relevant law and with a
view to preventing him from doing harm in future.
o·
E
F
G
H
27. In Hardhan Saha v. State of WB., (1975) 3 SCC 198,
explaining the concept of preventive detention, the Constitution
Bench bf this Court, speaking through Ray, C.J. stated;
"The essential concept of preventive detention is that the
detention of a person is not to punish him for something
he has done but to prevent him from doing it. The basis of
detention is the satisfaction of the executive of a
reasonable probability of the likelihood of the detenu acting
in a manner similar to his past acts and preventing him by
detention from doing the same. A criminal conviction on
the other hand is for an act already done which can only
be possible by a trial and legal evidence. There is no
parallel between prosecution in a Court of law and a
detention order under the Act. One is a punitive action and
the other is a preventive act. In one case a person is
punished to prove his guilt and the standard is proof
beyond reasonable doubt whereas in preventive detention
a· man is prevented from doing something which _it is
necessary for reasons mentioned in Section 3 of the Act
to prevent".
<
,..
I .
. ,
STATE OF MAHARASHTRA & ORS. v. BHAURAO
987
PUNJABRAO GAWANDE [C.K. THAKKER, J.]
~
28. In another leading decision in Khudiram Das v.