IMPORTANT POINT
When challenge is sought to be made at pre-execution stage a person may try to abscond and thereafter take a stand that period for which detention was directed is over and, therefore, order of detention is infructuous. Same plea even if raised deserves to be rejected as without substance.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge of the Punjab and Haryana High Court allowing the Writ Petition filed by the respondents. Prayer in the writ petition was to quash the detention order dated 10.5.1993. Stand of the writ petitioners before the High Court was that a petition for preventing the respondents in the writ petition from enforcing the said order was disposed of by order dated 19.7.2002 in Criminal Writ Petition No.1408 of 1999. The respondents in the writ petition opposed the same taking the stand that in some other cases the High Court had taken the view that once the order had become infructuous by lapse of time, a different yardstick should not have been applied. In the case at hand, the writ petition was, therefore, allowed with the following observations:

“In view of the above, this petition is allowed and the respondents are restrained from enforcing order dated 10.5.1993. They will however be at liberty to pass any fresh order, if so required, and take appropriate action thereafter in accordance with law.”

3. Learned counsel for the appellants submitted that the judgment of the High Court is contrary in terms. If on one hand it was held that the order dated 10.5.1993 had become infructuous, there was no question of granting a liberty to pass a afresh order. It is pointed out that for a considerable length of time the order of stay was in operation.

4. In Additional Secretary to the Govt. of India and Ors. v. Smt. Alka Subhash Gadia and Anr.,1 ((1992 Supp (1) SCC 496), it was held that courts under Articles 226 and 32 of the Constitution of India, 1950 (in short the ‘Constitution’) can interfere at the pre execution stage with the detention order only if they are satisfied that :

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

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

(iii) it is passed for a wrong purpose;

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

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

5. The position has been re-iterated in Administration of NCT Delhi v. Prem Singh,2 (1995 Supp (4) SCC 252) and Sayed Taher Bawamiya v. Joint Secretary,3 (2000 (8) SCC 630).

6. The question whether the detenu or any one on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it has been examined by this Court on various occasions. One of the leading judgments on the subject is Smt. Alka Subhash Gadia’s case (supra) In para 12 of the said judgment, it was observed by this Court as under:

“12. This is not to say that the jurisdiction of the High Court and the Supreme Court under Articles 226 and 32 respectively has no role to play once the detention -punitive or preventive- is shown to have been made under the law so made for the purpose. This is to point out the limitations, which the High Court and the Supreme Court have to observe while exercising their respective jurisdiction in such cases. These limitations are normal and well known, and are self-imposed as a matter of prudence, propriety, policy and practice and are observed while dealing with cases under all laws. Though the Constitution does not place any restriction on these powers, the judicial decision have evolved them over a period of years taking into consideration the nature of the legislation or of the order or decision complained of, the need to balance the rights and interests of the individual as against those of the society, the circumstances under which and the persons by whom the jurisdiction is invoked, the nature of relief sought, etc. To illustrate these limitations, (i) in the exercise of their discretionary jurisdiction the High Court and the Supreme Court do not, as Courts of appeal or revision, correct mere errors of law or of facts, (ii) the resort to the said jurisdiction is not permitted as an alterna