Nahar Vs. Union of India & Ors  INSC 110
(31 March 1999)
Ahmad, R.P. Sethi. S. Saghir Ahmad, J.
order of detention dated 3.2.1997 passed under Section 3 of the Conservation of
Foreign Exchange and Prevention off Smuggling Activities Act, 1974 (Hereinafter
referred to as the "Act"), under which Ramesh Nahar, husband of the
appellant was detained, was challenged before the Bombay High Court in a Writ
petition filed under Article 226 of the Constitution but the petition was
dismissed on 23.12.1998. It is this judgment which is challenged in this
have heard learned counsel for the parties.
R.K. Jain, learned senior counsel appearing on behalf of the appellant has
contended that though the order of detention was passed on 3.2.1997, it was
executed after more than a year on 23.4.1998 without there being any
explanation for the delay in executing the order. This delay, it is submitted
should be treated to have vitiated the order.
dealing with the point raised by Mr.R.K. Jain, we may point out that individual
liberty is one of the most valuable fundamental rights guaranteed by the
Constitution to the citizens of this country. Nearly three decades ago, this
Court had pointed out in Motialal Jain vs. State of Bihar & Ors. Air 1968
SC 1509 = 1968 (3) SCR 587 that the interest of the society is no less
important than that of the individual. It was also observed that the provisions
of the Constitution for safeguarding the interests off the society harmonies
the liberty of the individual with social interests.
another case, namely SK Abdul Karim & Ors. vs. State of West Bengal 1969(2)
SCJ 281 - AIR 1969 SC 1028 = 1969 (3) SCR 479 = 1969 (1) SCC 433, it was
indicated that while the Constitution has recognised the necessity of laws as
to preventive detention, it has also provided certain safeguards to mitigate
their harshness by placing fetters on the legislative powers conferred on this
topic. Article 22 lays down the permissible limits of legislation empowering
preventive detention and further prescribes the minimum procedure that must be
included in any law permitting preventive detention.
Act provides for preventive detention. Section 33 gives power to the Central or
the State Govt. of the specified status, to pass, with respect to any person
with a view to preventing him from acting in any manner prejudicial to the
conservation or augmentation of foreign exchange or with a view to preventing
him from smuggling activities specified therein or harbouring persons engaged
in smuggling activities, an order directing that such person be detained.
action under this Section can be taken only on 'satisfaction'. The further
requirement is that the order should have been passed for preventing that
person from carrying on the prejudicial activities. This implies that as soon
as the Govt. or its officer feels satisfied that an order under this Section is
necessary, it has to e passed and implemented forthwith so that the prejudicial
activities carried on by the person against whom the order has been passed, may
be stopped immediately or at the earliest.
object can be achieved if the order is immediately executed. If, however, the
authorities or those who are responsible for the execution of the order, sleep
over the order and do not execute the order against the person against whom it
has been issued, it would reflect upon the satisfaction of the detaining
authority and would also be exhibitive of the fact that the immediate necessity
of passing that order was wholly artificial or non-existent.
T.A. Abdul Rahman vs. State of Kerala & Ors. AIR 1990 SC 225 = 1989 (3) SCR
945 = 1989 (4) SCC 741, it was held as under :
when is unsatisfactory and unexplained delay between the date of order of
detention and the date of securing the arrest of the detinue, such a delay
would throw considerable doubt on the genuineness of the subjective
satisfaction of the detaining authority leading to a legitimate inference that
the detaining authority was not really and genuinely satisfied as regards the
necessity for detaining the detinue with a view to preventing him from acting
in a prejudicial manner.
P.M. Haeikumar vs. Union of India & Ors. 1995 (5) SCC
691 = AIR 1996 SC70, the view was reiterated and it was held that unexplained
delay in the execution of the order of detention would vitiate the order.
another decision in SMF Sultan Abdul Kader vs. Jt. Secy, to Govt. of India
& Ors., (1998) 8 SCC 343 = JT 1998 (4) SC 457, to which one of us (Saghir
Ahmad, J) was a member, the unexplained delay in the execution of the order of
detention was held fatal.
instant case is examined in the light of the above principles, it would be
noticed that in the counter affidavit filed by the respondents in this case,
the delay in execution of the order has been explained as under :
Further in spite of efforts made by the Sponsoring Authority and the the Police
Officials of the P.C.B., Mumtai, the detenue would not be apprehended as he was
absconding Finally the detenue was apprehended and the Detention Order was
served on 23.4.1998. ....
making a vague allegation that the appellant was absconding and was apprehended
on 233.4.1998 when the order was executed against him, the respondents have not
given details of any steps that might have been taken in the meantime to
execute the order against Ramesh Nahar. They could have taken appropriate steps
under Section 7 of the Act or even under the provisions of Criminal Procedure
Code for securing the arrest of the husband of the appellant.
detention order was passed on 3.2.1997 but it was executed on 23.4.1998.
Obviously, the effect of non-execution of the order was that the authorities
themselves gave liberty to the detinue to carry on his earlier activities
giving rise, in that process, to a question whether the activities complained
of were really prejudicial activities within the meaning of Section 3 of the
Act. As pointed out above, the execution of the order off detention long after
it was passed would have the effect of vitiating the order as also the
satisfaction of the authorities who passed that order.
the reasons set out above, the appeal is allowed and the order of detention
passed under Section 3 of the Act is quashed with the direction that Ramesh Nahar,
husband of the appellant, shall be set at liberty forthwith, unless his
detention is required in connection with some other case.
PETITION CRL. NO. 30 OF 1999.
Writ Petition is dismissed as having become infructuous.