2013 Supreme(SC) 643

IN THE SUPREME COURT OF INDIA
ALTAMAS KABIR, CJI., GYAN SUDHA MISRA AND J. CHELAMESWAR, JJ.
SUBHASH POPATLAL DAVE - PETITIONER
VS.
UNION OF INDIA & ANR. - RESPONDENTS
WRIT PETITION (CRL) NO.137 OF 2011
WITH
W.P. (CRL) NOS.35, 138, 220 & 249 OF 2011
AND
W.P. (CRL) NO.14 OF 2012
WITH
Crl.A. NO.932 OF 2013 (@ SLP (CRL) NO.1909 OF 2011)
Crl.A. NO.931 OF 2013 (@ SLP (CRL) NO.1938 OF 2011)
Crl.A. NO.930 OF 2013 (@ SLP (CRL) NO.2442 OF 2012) AND
Crl.A. NOS. 961-962 OF 2013 @ SLP(CRL)NOS.2091-2092 OF 2012
WITH
TRANSFERRED CASE (CRL.) NOS.2-3 OF 2013 @ TRANSFER PETITION (CRL.) NOS.38-39/2013
Decided on: July 16, 2013

Important Point
Not only is a proposed detenue entitled to challenge the detention order of the pre-execution stage, but he is entitled to do so after several years had elapsed after the passing of the detention order on ground other than the five grounds enumerated in Alka Subhash Gadia’s case.
*******

Headnote:(i) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974—Section 3(1) —Order of detention—Challenge at pre-e3xecution stage—Whether a detention order passed under the provisions of COFEPOSA Act, could be challenged at the pre-execution stage only on any of the five exception carried out by the Supreme Court in Additional Secretary, Government of India v. Alka Subhash Gadia, 1992 Supp (1) SCC 496, or whether such challenge could be maintained on other grounds as well—Held, m five exceptions culled out in Alka Subhash Gadia’s case were not intended to be exclusive.

       Held: As far as the first ground of challenge is concerned, we have already indicated in our earlier order of 10th July, 2012, that the five exceptions culled out in Alka Subhash Gadia’’s case were not intended to be exclusive and that the decision in Sayed Taher Bawamiya’s case could not be accepted. We had indicated that it was not the intention of the Hon’ble Judges in Alka Subhash Gadia’s case to confine the challenge at the pre-execution stage only to the five exceptions mentioned therein, as that would amount to stifling and imposing restrictions on the powers of judicial review vested in the High Courts and the Supreme Court under Articles 226 and 32 of the Constitution. After considering other decisions delivered on the aforesaid proposition, after the decision in Alka Subhash Gadia’s case, we had also held that the exercise of powers vested in the superior Courts in judicially reviewing executive decisions and orders cannot be subjected to any restrictions, as such powers are untrammelled and vested in the superior Courts to protect all citizens and non-citizens, against arbitrary action. As submitted by Mr. Rohatgi at the very beginning of his submissions, we had indicated that law is never static, but dynamic and that the right to freedom being one of the most precious rights of a citizen, the same could not be interfered with as a matter of course and even if it is in the public interest, such powers would have to be exercised with extra caution and not as an alternative to the ordinary laws of the land.

       Accordingly, after taking into account the submissions made on behalf of the respective parties on the different aspects of the detention orders, I am inclined to hold that 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 (supra). I am also inclined to hold that 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. I also hold that 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.

       (ii) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974—Section 3(1) and 7—Order of detention —Order not executed on record to indicate that the proposed detenu had ,in the meantime, continued his anti-social activities—Whether any live link could be said to exist between the order of detention and the object sought to be achieved by treating the detention order as valid after the passage of several years ranging from three to sixteen years, during which period there is no record of the proposed detenu having undertaken any activities similar to ones indicated in the detention order —(No) —Detention order in respect of proposed detenues must be quashed.

       Held: With regard to the second, third and sixth grounds of challenge, I had also dealt at length on whether a preventive detention order, which was not meant to be punitive, but preventive, could be executed after a lapse of several years during which period the live link between the order and the objects sought to be achieved by executing the order, was snapped. In my view, since it was the intention of the Sponsoring Authorities that a person having criminal propensities should be prevented from indulging in the same to the prejudice of the public at large and from also indulging in economic offences against the Revenue, it would have to be established that the intention with which the preventive detention order had been passed continued to subsist so that the same could be executed even at a later date. In none of the instant cases, have the Sponsoring Authorities or the Detaining Authorities 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 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 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.

       In order to arrive at a decision in these matters and to answer the question as to whether an order of preventive detention can continue to subsist after a long period had lapsed from the date of passing of the order, it will, first of all, be necessary to appreciate the difference between preventive detention and the ordinary criminal law providing for detention 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 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.

       Both, the Revenue, as also the police authorities, appear to be myopic in regard to the dividing line between preventive detention and arrest for a crime actually committed. On account of the above, the State and its authorities have attempted to justify the continuance of the validity of detention orders even after the lapse of several years after the passing of the detention order, citing principles such as a person cannot take advantage of his own wrong, in support thereof. Learned counsel for the respondent authorities have fused the two principles together in dealing with the question of preventive detention. A person evading service of an order of preventive detention cannot, in my view, be treated with the same yard-stick as a person, accused of having committed a criminal offence and evading arrest to thwart the criminal process initiated against him. The two principles stand on different footings. In the first place, the proposed detenue is detained without being made an accused in connection with any particular case, but to prevent him from committing an offence, whereas in the second place, a person actually charged with having committed an offence is on the run to avoid the consequences of his criminal acts. Once this difference is appreciated, an order of detention passed and remaining unexecuted for several years becomes open to question regarding its executability. If the intention of the authorities in passing a detention order is to prevent the commission of an offence by the proposed detenue 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 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 indulged in any such activity after the order of preventive detention was passed, it would, in my view, 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 had been passed.

        (iii) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974—Sections 3(1), 6 and 7—Order of detention—Execution of —Power in relating to absconding persons—Whether having absconded or evaded the execution of the detentions order the proposed detenue could take4 advantage of such fact and challenge the detention order, which remains unexecuted—Whether provisions of Section 7 of the COFEPOSA Act, can be made the basis for making an order of preventive detention—(No).

       Held: It will be seen from the provisions of section 7 that if the appropriate Government has reason to believe that a person in respect of whom 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 of the Code of Criminal Procedure and his property, as if the order directing him that he be detained were a warrant issued by the Magistrate. Section 7(1)(b) also provides for penal consequences, in the event directions given there under, 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 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.

       In my view, the said provisions clearly enumerate the powers vested in the Authorities when a proposed detenue absconds. That, in my view, is the ordinary law of the land, and not preventive detention, which is meant to prevent the commission of offences, and not to punish an individual for violation of statutory provisions. Accordingly, in my view, the submissions made on behalf of the Union of India and the State of Maharashtra, cannot be accepted and absconding cannot, therefore, be made a ground for making an order of preventive detention. Neither in Dropti Devi’s case (supra) nor in Amrit Lal Manchanda’s case or in M. Ahamedkutty’s case had the above-mentioned provisions been brought to the notice of the learned Judges who heard the matters, but had no occasion to consider the same.

        (iv) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974—Section 3(1) —Customs Act—Section 127H—Order of detention—Execution of—Once the settlement commission under the Customs Act accepts a settlement and provides complete immunity from prosecution under Section 127 H of the Customs Act, could the detention order be passed or proceeded with —(No).

       Held: As far as the fourth ground is concerned, one has to bear in the mind that the provision of the Customs Act and other Revenue laws are mainly aimed at recovery of dues and penalties, payment whereof had been avoided and it is such manner of thinking which resulted in the amendment of the Customs Act, 1962, by the inclusion of Chapter XIVA, by Act 21 of 1998. Chapter XIVA relates to settlement of cases and contains Sections 127 A to 127N. Section 127B empowers any importer, exporter or any other person to make an application in respect of a case pertaining to him, to the Settlement Commission, to have the case settled. The Settlement Commission has been given powers to reopen completed proceedings and, thereafter, allow the said applications under Section 127F. In addition, the Settlement Commission has been empowered under Section 127H to grant immunity from prosecution and penalty. Section 127M lays down that any proceeding under Chapter XIVA before the Settlement Commission would be deemed to be a judicial proceeding, within the meaning of Sections 193 and 228 of the Customs Act, 1962 and also for the purposes of Section 196 of the Indian Penal Code.

       Clearly, the object with which the said provisions had been introduced in the Customs Act, was not to continue with criminal prosecution or to take other steps, if a settlement proposed by an alleged offender was accepted by the Settlement Commission, which granted immunity from prosecution under the Act to the said applicant, after considering the matter from its various angles. Once such immunity from criminal prosecution is granted, the question of preventive detention for the same cause of action loses its relevance, unless the proposed detenue under the provisions of the COFEPOSA Act, 1974, or any other ancillary provisions, is involved in fresh transgression of the law. clause (b) of sub-section (i) shall be cognizable.”

       Result: Petitions disposed of accordingly.