IMPORTANT POINT
Detention order could not be quashed by High Court merely because at pre-execution stage petitioner challenged it by filing writ and operation of detention order was stayed and thus considerable time gap since date detention order was passed and that writ petition was heard on merits.

Headnote:Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 3(1)-Preventive detention order-Writ challenging order at pre-execution stage-Operation of order was stayed pending consideration of writ-Only point then urged and accepted by High Court was passage of time between the date of detention order and date on which High Court had taken up writ petition for consideration-Relying upon Sunil Fulchand Shah s case, High Court held detention order to be unsustainable-Appeal-Cases involving challenges to detention order before and after execution of order stand on different footing-High Court failed to consider whether any relief was available to petitioner even before detention order was executed-Petitioner could not be allowed to have an unfair advantage and double benefit of his own action-High Court was not justified in quashing the detention order.
Held : The High Court does not appear to have considered the case in the background of whether any relief was available to the writ petitioner even before the order of detention was executed. The decision relied upon by it was not strictly applicable. Merely because the High Court had granted stay of the order of detention, the respondent cannot take advantage of the order of stay passed by the High Court to contend that there is a passage of time. The petitioner cannot be allowed to have an unfair advantage and double benefit of his own action, which delayed the execution of the detention order. In fact in Sayed Taher Bawamiya s case (supra) the time gap was nearly 16 years. The inevitable conclusion therefore is that the High Court was not justified in quashing the order of detention. The writ petition filed by the respondent is dismissed. It is open to the respondent to surrender to custody as was observed in Parasmal Rampuria s case (supra) and take such plea as is available in law. The reliance sought to be placed on the fate of proceedings taken against others is wholly inappropriate. The individual role, behavioral attitude and prognostic proposensthis have to be considered, person-wise, and no advantage can be allowed to be gained by the petitioners in these cases based on considerations said to have been made as to the role of the others and that too as a matter post detention exercise undertaken so far as they are concerned. The appeal is allowed. The order of the High Court is set aside and the writ petition filed before the High Court shall stand dismissed. (Para 19)

JUDGMENT

Arijit Pasayat, J.-Leave granted.

2. In both these two appeals the Union of India questions legality of the judgment rendered by the Punjab and Haryana High Court quashing the order of detention passed by the concerned authority under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short the COFEPOSA ).

3. A brief reference to the factual aspects which is almost undisputed would suffice.

4. Since the points for adjudication are common to both the appeals the factual position in SLP (Crl.) No. 3901/2003 is noted for convenience as the only difference between this case and the other case relates to the dates. The order of detention was passed under Section 3(1) of COFEPOSA on 31.10.2001. The respondent filed a writ petition before the Punjab and Haryana High Court on 20.12.2001 and on 21.12.2001 an order staying operation of the detention order was passed. On 31.5.2002 the High Court decided that it had territorial jurisdiction to deal with the matter, but dismissed the writ petition. An application for review was filed on the ground that though it was noted that the writ petition was dismissed, in fact the various points urged in support of the writ application were not considered. The High Court issued notice on the review petition and pending consideration stayed the operation of detention order. When the matter was heard afresh before the High Court it appears that only one point was urged i.e. passage of time between the date of the detention order and the date on which the High Court had taken up the writ petition for consideration. Relying on a decision of this Court in Sunil Fulchand Shah v. Union of India and Ors. (2000(3) SCC 409) the High Court held the order of detention dated 31.10.2001 to be unsustainable. However, it permitted the concerned authority to examine the matter and pass a fresh order if necessary and the circumstances so warrant.

5. Learned Additional Solicitor General submitted that the decision in Sunil Fulchand s case (supra) had no application to the present case. In that case the question adjudicated was whether the period during which the detenu is on parole can be adjusted from the period of detention indicated in the detention order. While dealing with that issue the Court observed that where there is considerable gap of time, the desirability of sending any detenu to custody has to be considered in the background of the issue as to whether a live link for preventive detention still existed. That had nothing to do with a challenge to the order of detention before its execution.

6. Mr. Gopal Subramaniam, learned senior counsel appearing for the respondent submitted that the writ petitioner was not in custody pursuant to the order of stay passed by the High Court. The stay order can be treated at par with an order of parole. In any event, a live link has to be established to detain a person in custody by way of preventive detention. The liberty of a person is sacrosanct and it should not be affected except on grounds legally available to the detaining authority.

7. With reference to a decision of this Court in Union of India and Ors. v. Muneesh Suneja (2001(3) SCC 92) it is submitted that the detaining authority has to be satisfied afresh whether the detention was still necessary. It was submitted that liberty was given to the detaining authority and, therefore, it would not be proper to interfere. It is also pointed out that in the case of four similarly situated persons relating to the alleged offending acts, detention orders have been revoked in respect of two and in respect of two others, the High Court has quashed the orders of detention and no appeal has been filed.

8. So far as these four persons are concerned, learned ASG submitted that their cases were not considered at the pre-execution stage. All the four persons were in custody and their cases were considered by the Advisory Board or the High Court as the case may be. They do

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2004 Supreme(SC) 201

Cases Referred (6)