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. Nos. 930-932 of 2013 and Crl. A. Nos. 961-962 of 2013 with Transferred Case (Crl.) Nos. 2-3 of 2013. Case: Subhash Popatlal Dave Vs Union of India (UOI) and Anr.. Supreme Court

Case Number: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. Nos. 930-932 of 2013 and Crl. A. Nos. 961-962 of 2013 with Transferred Case (Crl.) Nos. 2-3 of 2013
Party Name:Subhash Popatlal Dave Vs Union of India (UOI) and Anr.
Counsel:For Appellant: Ravindra Keshavrao Adsure, D. Mahesh Babu, Rakesh Dahiya and Nikhil Jain, AORs. And For Respondents: P.P. Malhotra, ASG., Ranjana Narayan and Chetan Chawla, Advs., B. Krishna Prasad, Asha Gopalan Nair, Arvind Kumar Sharma, Gopal Balwant Sathe and Kailash chand, AORs.
Judges:Altamas Kabir, C.J.I., Gyan Sudha Misra and J. Chelameswar, JJ.
Issue:Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections 3(1), 4, 6, 7, 7(1); Customs Act, 1962 - Sections 112A, 114F, 127A, 127B, 127C, 127D, 127E, 127F, 127G, 127H, 127H(1), 127I, 127J, 127K, 127L, 127M, 127N, 193, 228; Foreign Exchange Regulation Act, 1973 - Sections 8(1), 8(2), 8(4), 9(1), 14, 27(1), 49(3...
Citation:2013 CriLJ 4166, 2013 (298) ELT 3 (SC), 2013 (3) RCR (Cri) 858, 2013 (9) SCALE 295, 2014 )(1) SCC 280
Judgement Date:July 16, 2013
Court:Supreme Court
 
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Judgment:

Altamas Kabir, C.J.I.

  1. Leave granted in the Special Leave Petitions. Transfer Petition (Crl.) Nos. 38-39 are allowed.

  2. The common thread which runs through these matters being heard together is the challenge thrown in each matter to detention orders passed either against the Petitioners themselves or the persons represented by them. The common question of law involved in these Appeals, Writ Petitions and Transfer Petitions is whether a detention order passed under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as "the COFEPOSA Act, 1974", could be challenged at the pre-execution stage only on any of the five exceptions carved out by this Court in Addl. Secretary, Govt. of India v. Alka Subhash Gadia (1992) Supp. (1) SCC 496, or whether such challenge could be maintained on other grounds as well. The matter had come up for hearing on the said question on several days when we had occasion to consider the decisions referred to by the learned Additional Solicitor General, Mr. P.P. Malhotra in Sayed Taher Bawamiya v. Joint Secretary, Government of India (2000) 8 SCC 630 and in the case of Union of India v. Atam Prakash and Anr. (2009) 1 SCC 585, wherein it had been held that the grounds of challenge to a detention order at the pre-execution stage could only be confined to the five exceptions set out in Alka Subhash Gadia's case (supra). After having considered all the said decisions and the submissions made on behalf of the respective parties and keeping in mind the fact that the most precious right of a citizen is his right to freedom, we were convinced that the right of a detenue to challenge a prevention detention order passed against him at the pre-execution stage on grounds other than those set out in paragraph 30 of the judgment in Alka Subhash Gadia's case (supra) required further examination. We had accordingly directed these matters to be listed for final hearing on all the grounds of challenge directed against the detention orders.

  3. Appearing for the Appellants and the Writ Petitioners, Mr. Mukul Rohatgi, learned Senior Advocate, submitted that the question as to whether the five exceptions mentioned in Alka Subhash Gadia's case (supra) were only illustrative and not exhaustive had already been considered in the common judgment dated 10th July, 2012, wherein it was also held that the law is not static, but dynamic. Mr. Rohatgi reiterated his earlier submission that if a citizen's right to freedom is to be interfered with in the public interest, such powers would have to be exercised with extra caution and not simply as an alternative to the ordinary laws of the land.

  4. Mr. Rohatgi submitted that if it is to be accepted that challenge to a detention order could be made at the pre-execution stage only on the five exceptions mentioned in Alka Subhash Gadia's case, it would result in restrictions being imposed on the powers vested in the Supreme Court under Article 32 and in the High Courts under Article 226 of the Constitution. Mr. Rohatgi submitted that with the passage of time since the decision rendered in Alka Subhash Gadia's case in 1992, new grounds of challenge, such as absence of live link and intervention of Settlement Proceedings under the Customs Act, 1962, have been canvassed which could not have been contemplated in Alka Subhash Gadia's case and cannot be ignored in the facts of cases now being brought before the Courts. Mr. Rohatgi submitted that a detenue must, therefore, be held to have the right to challenge the detention order passed against him, at the pre-execution stage, on different grounds in addition to the five exceptions carved out in Alka Subhash Gadia's case, but each matter would have to be considered and decided on its own set of facts.

  5. In all these cases, the common refrain is that the object sought to be achieved by passing the detention orders, were no longer relevant and had become otiose, having regard to the fact that the object of a detention order is not to punish a citizen for a crime with which he had not been charged, but to prevent him from committing such crime in the future. Mr. Rohatgi submitted that in these cases the said principles have been violated and had been used by the concerned authorities as a convenient alternative to the ordinary laws of the land.

  6. In this background, the matter which was taken up first and treated as the lead matter, is Writ Petition (Crl.) No. 137 of 2011, filed by Subhash Popatlal Dave, questioning the detention order issued by the Joint Secretary, Government of India, on 18.08.1997, under Section 3(1) of the COFEPOSA Act, 1974.

  7. Mr. Rohatgi submitted that this was a classic example of the sheer misuse of the powers vested in the authorities to issue orders of detention as an alternative to the ordinary laws of the land. Mr. Rohatgi submitted that, unless and until, it could be shown that after the detention order was passed the detenue had indulged in activities which were similar to those on account whereof the detention order had been passed, the very reason for the detention order stood eroded. The detention order, which was to be valid for a period of one year, outlived its purpose after the said period, since there is nothing on record to show that the proposed detenue had indulged in any activities of a similar nature after the detention order was passed. Mr. Rohatgi urged that there was no existing live link between the detention order and the intention of the authorities to detain the detenue by virtue of such detention order. Apart from the above, Mr. Rohatgi submitted that a prosecution has also been commenced against the proposed detenue before the Court of Additional Chief Metropolitan Magistrate, Esplanade, Mumbai, for offences alleged to have been committed under Sections 8(1), (2), (4), 9(1)(b), 9(1)(d), 14, 27(1), 49(3), (4), 56(1) of the Foreign Exchange Regulation Act, 1973, and the matter is now pending before the FERA Appellate Tribunal, New Delhi. Mr. Rohatgi submitted that, as has been held in the recent judgment of this Court in Rekha v. State of Tamil Nadu (2011) 5 SCC 244, when adequate measures and remedies under the ordinary criminal law had already been taken, there could be no necessity for issuance of detention orders by resorting to preventive detention law, on which count the impugned order of detention stands vitiated. The Petitioner prayed that the impugned detention order No. F.673/89/97-CUS. VIII dated 18.8.1997, issued by the Joint Secretary, Government of India, under Section 3(1) of the COFEPOSA Act, 1974, be declared void, unconstitutional and illegal in the interest of justice.

  8. The next case is that of Nitish Prakashchand Kothari [W.P. (Crl) No. 138 of 2011], who is himself the proposed detenue under the detention order dated 3.12.2009. The said order has been challenged on several grounds, including the ground relating to the existence of a live link between the preventive detention order and the circumstances prevailing today. Mr. Rohatgi submitted that in the present case more than three and a half years have passed since the impugned detention order was passed and there is nothing on record to indicate that the proposed detenue had or was likely to indulge in activities described in the detention order.

    Accordingly, the order of detention passed in respect of the Petitioner is required to be quashed.

  9. In Suresh D. Hotwani's case [W.P. (Crl.) No. 35 of 2011], the proposed detenue is one Nitesh Ashok Sadarangani, and the detention order was passed on 12.3.2001. The said detention order was challenged by the Writ Petitioner before the Bombay High Court, being Criminal Writ Petition No. 1645 of 2010, which dismissed the same on 5.1.2011. S.L.P. (Crl.) No. 2442 of 2012 was filed on 29.2.2012 against the said order of dismissal of the Writ Petition filed before the Bombay High Court. However, in the meantime, the Petitioner also moved the present Writ Petition [W.P. (Crl.) No. 35 of 2011] challenging the same order of detention. Mr. Rohatgi submitted that, in fact, the challenge in the Special Leave Petition filed before this Court is against the judgment and order of the Bombay High Court dismissing the challenge to the detention order. On the other hand, Writ Petition [W.P. (Crl.) No. 35 of 2011] challenges the same detention order directly in this Court. Mr. Rohatgi submitted that the cause of action for the two proceedings are different, although, they may both arise out of the order of detention passed against the proposed detenue, Nitesh Ashok Sadarangani.

  10. Mr. Rohatgi urged that the grounds for challenge of the detention order are the same as those in Subhash Popatlal Dave's case [W.P. (Crl.) No. 137 of 2011] to the extent that after an interval of more than 11 years the detention order had become stale since there is no material to indicate that the proposed detenue had indulged in any activity during this period which may have given some justification to the continuance of the concerned detention order. Mr. Rohatgi submitted that the long interval between the passing of the detention order and the execution of the order has diluted the detention order and defeated the very purpose for which it was passed. Mr. Rohatgi also drew an analogy with the case of one Shri Nikunj Kirti Kanaria, whose detention order was revoked at the pre-execution stage, since the same had become stale owing to passage of time. Mr. Rohatgi submitted that in the present case the live link stood snapped as there was no explanation for the long delay between the date of the detention order and the failure to execute the same. Referring to the decision of this Court in Maqsood Yusuf Merchant v. Union of India (2008) 16 SCC 31, learned Counsel submitted that this Court had set aside the detention order under the COFEPOSA Act, 1974, because of the long delay during which there was nothing on...

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