( 1 ) THESE matters have been REFERRED TO to a Full Bench for the purpose of considering the correctness of the decision of the Division Bench in Subhash Chander vs. Union of India and others (1991 (43) DL. T 517 ). The said Division Bench there held that apart from the five contingencies mentioned in Alka Subhash Gadia (JT 1991 (1) SC 549) by the Supreme Court, there could be other grounds which could be urged by a person proposed to be detained under the Conservation of Foreign Exchange and Prevention of Smuggling Act (hereinafter called the COFEPOSA ). On that basis, it was held by the Division Bench that delay in the execution of the detention order could be an additional ground upon which the detention order could be challenged by a person before the service of the detention order.

( 2 ) IN the cases before us the main question is whether the grounds stated in Alka Subhash Gadia are exhaustive and if so whether delay in execution of detention order or delay in the passing of the detention order could be an additional ground upon which the detention order could be challenged at a pre-detention stage.

( 3 ) SO far as the point before us is concerned, it is sufficient to notice that the order of detention in the first case was passed on 31. 7. 1989 and that it still remains to be executed even in September,1994. The writ petition was filed on 18. 3. 94. In the second case (Cr. W. P 279 of 1994) the incident took place on 18. 5. 93 and the order of detention was passed on 7. 10. 93 and still remains to be executed in September,1994. According to the petitioners, on account of the delay in passing the order or the delay in the execution of the order,the purpose of detention has gone and the nexus between the grounds of detention and the detention order stands snapped and the petitioner can challenge the order without surrendering. It is argued that the case comes within the third ground stated in Alka Subhash Gadia case, namely, that the detention order is "passed " for a wrong purpose and the Court could quash it on the ground that the order was "passed for a wrong purpose. "

( 4 ) AFTER Alka Subhash Gadia, there have been two more decisions of the Supreme Court, namely Bapnas case 1992 (3) SCC 512 and Shamsudeens case 1992 (3) SCC 523. Now there are two more decisions, Prem Singh s 1994 (2) SCALE 747 and Subhash Muljimal Gandhi s 1994 (5) JT 358. The last of these was delivered by the Supreme court on 3. 9. 1994. We have to decide the main point arising before us, on the basis of Alka Subhash Gadia in the light of Bapna, Shamsudeen, Prem Singh and Subhash Muljimal Gandhi cases.

( 5 ) PRE-DETENTION challenges to preventive detention orders are on the increase. As pointed out by Sawant J. in ALKA SUBHASH GADIA, they are assuming considerable volume" and this requires to be curbed by elucidating the correct legal position. (see para 7 of Alka Subhash Gadia 1991 (1) JT 549 at 553 ). Sawant}. , after an exhaustive review of the case-law, enumerated five contingencies upon which an order of detention could be challenged at the pre- detention stage. The relevant passage reads as follows:

"the Courts have the necessary power and they have used it in proper cases as has been pointed above, although such cases have been few and the grounds on which the Courts have interfered with them at the pre-execution stages are necessarily very limited in scope and number viz. where the Courts are primaface satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed (ii) that it is sought to be executed against the wrong persons (iii) that it. is passed for a wrong purpose (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority, which passed it had no authority to do so. "

( 6 ) TWO other passages from Alka Subhash Gadia require mention for considering whether there could be grounds other than these five. Sawant J. again observed:

"the