The main legal point established in the judgment is that the challenge to a detention order must be justified, and the power of preventive detention may be exercised even if no criminal proceedings have been initiated against the detainee.

SREEDHARAN, J.

Petitioner in O.P. 17244/1994, is a person against whom order of detention has been issued by the State Government u/S. 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as "the COFEPOSA Act". That order was issued on 30-10-1989. Till date, he could not be arrested and detained pursuant to the said order of detention, even though various steps were taken by the Government for the said purpose. On 25-1-90, Government of Kerala issued notification in the Official Gazette under Section 7(1)(b) of the COFEPOSA Act directing the petitioner to appear before the Superintendent of Police, Malappuram. Thereafter a report was sent to the Chief Judicial Magistrate, Manjeri under Section 7(1)(a) of the COFEPOSA Act on 25-1-1990. The Magistrate on the basis of that report, registered a case as C.M.P. 242/1990. Thereupon petitioner moved the High Court of Calcutta (The number of the proceedings is not seen from the attested copy). Justice A. M. Bhattacherjee restrained the respondents from serving on the petitioner any order of detention under the provisions of the COFEPOSA Act or on any of the grounds on which a criminal case has been started against the petitioner and is pending before the Additional Chief Judicial Magistrate, Economic Offence, Ernakulam being O.S. No. 71/UB/89, on the basis of seizure made on 15-6-89, by the officers of the Air Customs, Trivandrum. A copy of that order was directed by the Court to be given to the petitioner duly counter-signed by the Assistant Registrar of the Court. A copy of that order was filed before the Chief Judicial Magistrate's Court, Manjeri along with C.M.P. 2719/1991. As a result of that, the learned Magistrate recalled the non-bailable warrant issued against the petitioner herein, namely Shri K. Abdul Azeez. It is now agreed on both sides that the proceedings initiated before the High Court of Calcutta was transferred to the Supreme Court at the instance of the State Government. The Supreme Court quashed the proceedings pending before the High Court of Calcutta. It appears that the order of the Supreme Court has not been produced before the Chief Judicial Magistrate, Manjeri. So, the proceedings in C.M.P. 242/1990, continues to be stayed.

2. O.P. 17244/1994, was filed by the petitioner challenging the order of detention before it was executed. Along with the petition, he moved C.M.P. 30454/1994, praying for stay of operation of Exhibit P. 6 (detention order passed under the COFEPOSA Act) Exhibit P. 10 (the order passed by the Government rejecting the representation made by the wife of the petitioner to withdraw the order of detention) pending disposal of the Original Petition. On 27-1-1995, a learned single Judge passed an order of interim stay as prayed for, for a period of one month. When the said petition came up before the learned Judge on 24-2-1995, the learned Judge extended the order of stay for a further period of three months. That order has been taken up in appeal by the State as W.A. 323/1995. When the appeal came up for admission, learned counsel representing the respondent raised a contention that appeal is not maintainable as per the decision of this Court in K. S. Das v. State of Kerala, 1992 (2) Ker LT 358. Jagannadha Rao, C.J., speaking on behalf of the majority of Judges, formulated the conclusions in paragraph 46 of that judgment. It inter alia stated that an appeal would lie against an order only if substantially affects or touches upon the substantial rights or liabilities of the parties or are matters or moments and caused substantial prejudice to the parties. His Lordship went on to State that normally a discretionary order is not to be interfered with unless it was passed without jurisdiction, contrary to law or are perverse and they also cause serious prejudice to the parties in such a manner that it might be difficult to restore the status quo ante or grant adequate com