JUDGMENT

S. RANGANATHAN, J.- The petitioner is the Managing Director of M/s E.A.P. Industries Ltd., engaged in the business of manufacture and production of plastic compounds, plastic films and sheets and plastic chemicals. The petitioner says that it came to his knowledge that an order has been passed on January 1, 1992 directing his detention under Section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act) - with a view to preventing him from abetting the smuggling of goods. A copy, purporting to be a copy of the said order, has been placed on record, though it is not quite clear how the petitioner came by it. Thereupon he filed a writ petition in the Calcutta High Court for an injunction restraining the concerned authorities from detaining him in pursuance of the above order. This writ petition as well as an appeal therefrom, have been dismissed: hence the present special leave petition.

2. According to the petitioner, the detention order has been issued in consequence of certain proceedings which had been initiated against him by the customs officials. He says that the company imported 267.782 metric tons of Ethyle Hexanol (EHA). This consignment was unloaded at Kandla Port and 24 tankers thereof were transported to bonded warehouses after assessment to duty in October-November 1989. Out of the chemical thus kept in the bonded warehouse the company cleared 175 metric tons between December 1989 and October 1990 on payment of duty. The company also imported 204 M.T. of P.V.C. resin from France on May 2, 1990. This consignment was unloaded at Calcutta Port and was cleared for bonded warehousing. Out of this 75 metric tons of P.V.C. resin were cleared by the company after payment of duty on September 7, 1990, September 17, 1990 and November 8, 1990 under the supervision of the Customs officials. According to the petitioner the warehouses were kept under lock and key and the key was in the custody of Customs officials.

3. Sometime in September 1991, the Customs officials discovered a shortage of 93.975 metric tons of P.V.C. resin and a similar shortage also in the stock of EHA kept in the warehouse. Certain enquiries and proceedings ensued and the petitioner says that in the course of these enquiries he came to know that an order of detention had been passed against him under the Act. Without waiting for the order and the grounds of detention being served on him, the petitioner filed a writ petition challenging the order of detention.

4. It is now well settled that, even in a case of preventive detention, it is not necessary for the proposed detenu to wait till a detention order is served upon him before challenging the detention order. It is true that the Constitution of India, which permits preventive detention requires the detaining authorities to serve the grounds of detention within a prescribed period after the detention order is served on the detenu. It does not envisage any disclosure of the grounds of detention prior to the service of the detention order on the detenu. To apprise the detenu in advance of the grounds on which he is proposed to be detained may well frustrate the very purpose of the law. On the other hand, to insist that no order of detention can be challenged until actual detention in pursuance thereof takes place might irretrievably prejudice the rights of proposed detenus in certain situations. Thus, the conflicting claims of the State and the fundamental right of a citizen need to be reconciled and the limitations, if any, precisely enunciated. This has been done by the recent decision of this Court in Additional Secretary to the Government of India v. Smt Alka Subhash Gadia{1992 Supp (1) SCC 496}. The real question of law that fell for consideration before the Court in that case was whether the detenu or any one on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it and if