JUDGMENT

Markandey Katju, J.

1. This writ petition under Article 32 of the Constitution of India has been filed to challenge the detention order dated 22.05.2008 passed against the petitioner, Deepak Gopaldas Bajaj, resident of Mumbai under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short `the Act), copy of which is Annexure P-1 to this petition.

2. Heard Shri Soli Sorabjee, learned senior counsel for the petitioner and Shri Shekhar Nafade and Shri Ravindra Keshavrao Adsure, learned counsels for the respondents and perused the record.

3. An objection has been taken by the learned counsels for the respondents that this petition should not be entertained because the petition has been filed at a pre-execution stage i.e. before the petitioner has surrendered or was arrested. Learned counsel for the respondents has relied on the decisions of this Court in State of Maharashtra vs. Bhaurao Punjabrao Gawande AIR 2008 SC 1705, which has followed the decision of this Court in Additional Secretary to the Government of India & Ors. vs. Smt. Alka Subhash Gadia & Anr. 1992 (Suppl.1) SCC 496, and the other decisions of this Court in Rajinder Arora vs. Union of India & Ors. 2006 (4) SCC 796, Alpesh Navinchandra Shah vs. State of Maharashtra & Ors. 2007 (2) SCC 777, etc.

4. We have carefully perused the aforesaid decisions and we are of the opinion that the legal position regarding the power of this Court or the High Court to set aside a preventive detention order at the pre execution stage needs to be further explained.

5. Since the aforesaid decisions have basically followed the decision of this Court in Additional Secretary to the Government of India & Ors. vs. Smt. Alka Subhash Gadia & Anr. (supra), it would be useful to refer to the aforesaid decision. In paragraph 30 of the aforesaid decision in Smt. Alka Subhash Gadias case (supra) this Court observed :

"30. As regards his last contention, viz., that to deny a right to the proposed detenu to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is a part of the basic structure of the Constitution, we find that this argument is also not well merited based as it is on absolute assumptions. Firstly, as pointed out by the authorities discussed above, there is a difference between the existence of power and its exercise. Neither the Constitution including the provisions of Article 22 thereof nor the Act in question places any restriction on the powers of the High Court and this Court to review judicially the order of detention. The powers under Articles 226 and 32 are wide, and are untrammeled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. However, the courts have over the years evolved certain self-restraints for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These self-imposed restraints are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. It is in pursuance of this self-evolved judicial policy and in conformity with the self-imposed internal restrictions that the courts insist that the aggrieved person first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary extraordinary and equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant authorities earlier dealt in detail with the circumstances under which these extraordinary powers are use