Union of India Vs. Amrit Lal Manchanda and Anr  Insc 106 (16 February 2004)
Raju & Arijit Pasayat.
out of SLP (Crl.) No.3901/2003) WITH CRIMINAL APPEAL NO.224/2004 (Arising out
of SLP (Crl.)No.3902/2003) ARIJIT PASAYAT, J.
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
brief reference to the factual aspects which is almost undisputed would
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.
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
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.
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
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.
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 not stand at par with the present respondents.
dealing with rival submissions, it would be appropriate to deal with the purpose
and intent of preventive detention. Preventive detention is an anticipatory
measure and does not relate to an offence, while the criminal proceedings are
to punish a person for an offence committed by him. They are not parallel
object of the law of preventive detention is not punitive but only preventive.
It is resorted to when the Executive is convinced that such detention is
necessary in order to prevent the person detained from acting in a manner
prejudicial to certain objects which are specified by the concerned law. The
action of Executive in detaining a person being only precautionary, normally
the matter has necessarily to be left to the discretion of the executive
authority. It is not practicable to lay down objective rules of conduct in an
exhaustive manner, the failure to conform to which should lead to detention.
The satisfaction of the Detaining Authority, therefore, is considered to be of
primary importance, with great latitude in the exercise of its discretion. The
Detaining Authority may act on any material and on any information that it may
have before it.
material and information may merely afford basis for a sufficiently strong
suspicion to take action, but may not satisfy the tests of legal proof on which
alone a conviction for offence will be tenable. The compulsions of the
primordial need to maintain order in society without which the enjoyment of all
rights, including the right to personal liberty of citizens would loose all
their meanings provide the justification for the laws of prevention detention.
Laws that provide for preventive detention posit that an individual's conduct
prejudicial to the maintenance of public order or to the security of State or
corroding financial base provides grounds for satisfaction for a reasonable
prognostication of possible future manifestations of similar propensities on
the part of the offender. This jurisdiction has at times been even called a
jurisdiction of suspicion. The compulsions of the very preservation of the
values of freedom of democratic society and of social order might compel a
curtailment for individual liberty. "To, lose our country by a scrupulous
adherence to the written law" said Thomas Jefferson "would be to lose
the law itself, with life, liberty and all those who are enjoying with us, thus
absurdly sacrificing the end to the needs".
no doubt, is the theoretical jurisdictional justification for the law enabling
prevention detention. But the actual manner of administration of the law of
preventive detention is of utmost importance. The law has to be justified by
striking the right balance between individual liberty on the one hand and the
needs of an orderly society on the other.
question whether the detenu or any one on his behalf is entitled to challenge
the detention order without the detenu submitting or surrendering to it has
been examined by this Court on various occasions. One of the leading judgments
on the subject is Additional Secretary to the Govt. of India and Ors. v. Smt. Alka
Subhash Gadia and Anr. case ((1992 Supp (1) SCC 496). In para 12 of the said
judgment, it was observed by this Court as under:
This is not to say that the jurisdiction of the High Court and the Supreme
Court under Articles 226 and 32 respectively has no role to play once the
detention punitive or preventive- is shown to have been made under the law so
made for the purpose. This is to point out the limitations, which the High
Court and the Supreme Court have to observe while exercising their respective
jurisdiction in such cases. These limitations are normal and well known, and
are self-imposed as a matter of prudence, propriety, policy and practice and
are observed while dealing with cases under all laws. Though the Constitution
does not place any restriction on these powers, the judicial decision have
evolved them over a period of years taking into consideration the nature of the
legislation or of the order or decision complained of, the need to balance the
rights and interests of the individual as against those of the society, the
circumstances under which and the persons by whom the jurisdiction is invoked,
the nature of relief sought, etc. To illustrate these limitations,
the exercise of their discretionary jurisdiction the High Court and the Supreme
Court do not, as Courts of appeal or revision, correct mere errors of law or of
the resort to the said jurisdiction is not permitted as an alternative remedy
for relief which may be obtained by suit or other mode prescribed by statute.
Where it is open to the aggrieved person to move another Tribunal or even
itself in another jurisdiction for obtaining redress in the manner provided in
the statute, the Court does not, by exercising the writ jurisdiction, permit
the machinery created by the statute to be by-passed;
does not generally enter upon the determination of questions which demand an
elaborate examination of evidence to establish the right to enforce which the
writ is claimed;
it does not interfere on the merits with the determination of the issues made
by the authority invested with statutory power, particularly when they relate
to matters calling for expertise, unless there are exceptional circumstances
calling for judicial intervention, such as, where the determination is mala
fide or is prompted by the extraneous considerations or is made in
contravention of the principles of natural justice of any constitutional
Court may also intervene where
the authority acting under the concerned law does not have the requisite
authority or the order which is purported to have been passed under the law is
not warranted or is in breach of the provisions of the concerned law or the
person against whom the action is taken is not the person against whom the
order is directed, or
the authority has exceeded its power or jurisdiction or has failed or refused
to exercise jurisdiction vested in it; or
the authority has not applied its mind at all or has exercised its power
dishonestly or for an improper purpose;
the Court cannot grant a final relief, the Court does not entertain petition
only for giving interim relief. If the Court is of opinion, that there is no
other convenient or efficacious remedy open to the petitioner, it will proceed to
investigate the case on its merit and if the Court finds that there is an
infringement of the petitioner's legal rights, it will grant final relief but
will not dispose of the petition only by granting interim relief
where the satisfaction of the authority is subjective, the Court intervenes
when the authority has acted under the dictates of another body or when the
conclusion is arrived at by the application of a wrong test or misconstruction
of a statute or it is not based on material which is of a rationally probative
value and relevant to the subject matter in respect of which the authority is
to satisfy itself. If again the satisfaction is arrived at by taking into
consideration material, which the authority properly could not, or by omitting to
consider matters, which it sought to have, the Court interferes with the
In proper cases the Court also intervenes when some legal or fundamental right
of the individual is seriously threatened, though not actually invaded." In
Sayed Taher Bawamiya v. Joint Secretary to the Govt. of India and Ors. (2000 (8) SCC 630), it was
observed by this Court as follows:
Court in Alka Subhash's case (supra) was also concerned with a matter where the
detention order had not been served, but the High Court had entertained the
petition under Article 226 of the Constitution. This Court held that equitable
jurisdiction under Article 226 and Article 32 which is discretionary in nature
would not be exercised in a case where the proposed detenu successfully evades
the service of the order. The Court, however, noted that the Courts have the
necessary power in appropriate case to interfere with the detention order at
the pre-execution stage but the scope for interference is very limited. It was held
that the Courts will interfere at the pre- execution stage with the detention
orders only after they are prima facie satisfied:
the impugned order is not passed under the Act which it is purported to have
it is sought to be executed against a wrong person.
it is passed for a wrong purpose.
it is passed on vague, extraneous and irrelevant grounds, or (v)that the
authority which passed it had no authority to do so.
see it, the present case does not fall under any of the aforesaid five
exceptions for the Court to interfere.
contended that these exceptions are not exhaustive. We are unable to agree with
this submission. Alka Subhash's case (supra) shows that it is only in these
five types of instances that the Court may exercise its discretionary
jurisdiction under Article 226 or Article 32 at the pre- execution stage. The
appellant had sought to contend that the order which was passed was vague,
extraneous and on irrelevant grounds but there is no material for making such
an averment for the simple reason that the order of detention and the grounds
on which the said order is passed has not been placed on record inasmuch as the
order has not yet been executed. The appellant does not have a copy on the
same, and therefore, it is not open to the appellant to contend that the non-
existent order was passed on vague, extraneous or on irrelevant grounds".
Court's decision in Union of India and Ors. v. Parasmal Rampuria (1998 (8) SCC
402) throws considerable light as to what would be the proper course for a
person to adopt when he seeks to challenge an order of detention on the
available grounds like delayed execution of detention order, delay in
consideration of the representation and the like. These questions are really
hypothetical in nature when the order of detention has not been executed at all
and challenge is made at pre-execution stage. It was observed as under:
our view, a very unusual order seems to have been passed in a pending appeal by
the Division Bench of the High Court. It is challenged by the Union of India in
these appeals. A detention order under Section 3(1) of the COFEPOSA Act was
passed by the authorities on 13.9.1996 against the respondent. The respondent
before surrendering filed a writ petition in the High Court on 23.10.1996 and
obtained an interim stay of the proposed order, which had remained un- served.
The learned Single Judge after hearing the parties vacated the ad interim
relief. Thereafter, the respondent went in appeal before the Division Bench and
again obtained ad interim relief on 10.1.1997 which was extended from time to
time. The writ appeal has not been still disposed of.
the writ petition was filed, the respondent had not surrendered.
these circumstances, the proper order which was required to be passed was to
call upon the respondent first to surrender pursuant to the detention order and
then to have all his grievances examined on merits after he had an opportunity
to study the grounds of detention and to make his representation against the
said grounds as required by Article 22(5) of the Constitution." In Sunil Fulchand
Shah's case (supra) a Constitution Bench of this Court observed that a person
may try to abscond and thereafter take a stand that period for which detention
was directed is over and, therefore, order of detention is infructuous. It was
clearly held that the same plea even if raised deserved to be rejected as
without substance. It should all the more be so when the detenu stalled the
service of the order and/or detention in custody by obtaining orders of Court.
In fact, in Sayed Taher's case (supra) the fact position shows that 16 years
had elapsed yet this Court rejected the plea that the order had become stale.
aspects were highlighted recently in Hare Ram Pandey v. State of Bihar and Ors.
(2003 (10) JT 114).
involving challenges to orders of detention before and after execution of the
order stand on different footings. Courts should not place reliance on decisions
without discussing as to how the factual situation fits in with the fact
situation of the decision on which reliance is placed. Observations of Courts
are neither to be read as Euclid's theorems nor as provisions of the statute
and that too taken out of their context. These observations must be read in the
context in which they appear to have been stated. Judgments of courts are not
to be construed as statutes. To interpret words, phrases and provisions of a
statute, it may become necessary for judges to embark into lengthy discussions
but the discussion is meant to explain and not to define. Judges interpret
statutes, they do not interpret judgments. They interpret words of statutes;
their words are not to be interpreted as statutes. In London Graving Dock Co.
Ltd. V. Horton (1951 AC 737 at p.761), Lord Mac Dermot observed:
matter cannot, of course, be settled merely by treating the ipsissima vertra of
Willes, J as though they were part of an Act of Parliament and applying the
rules of interpretation appropriate thereto. This is not to detract from the
great weight to be given to the language actually used by that most
distinguished judge." In Home Office v. Dorset Yacht Co. (1970 (2) All ER
294) Lord Reid said, "Lord Atkin's speech.....is not to be treated as if
it was a statute definition It will require qualification in new
circumstances." Megarry, J in (1971) 1 WLR 1062 observed: "One must
not, of course, construe even a reserved judgment of even Russell L.J. as if it
were an Act of Parliament." And, in Herrington v. British Railways Board
(1972 (2) WLR 537) Lord Morris said:
is always peril in treating the words of a speech or judgment as though they
are words in a legislative enactment, and it is to be remembered that judicial
utterances made in the setting of the facts of a particular case."
Circumstantial flexibility, one additional or different fact may make a world
of difference between conclusions in two cases. Disposal of cases by blindly
placing reliance on a decision is not proper.
following words of Lord Denning in the matter of applying precedents have
become locus classicus:
case depends on its own facts and a close similarity between one case and
another is not enough because even a single significant detail may alter the
entire aspect, in deciding such cases, one should avid the temptation to decide
cases (as said by Cordozo) by matching the colour of one case against the colour
of another. To decide therefore, on which side of the line a case falls, the
broad resemblance to another case is not at all decisive." *** *** ***
"Precedent should be followed only so far as it marks the path of justice,
but you must cut the dead wood and trim off the side branches else you will
find yourself lost in thickets and branches. My plea is to keep the path to
justice clear of obstructions which could impede it." 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.
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.
3902/2003 The conclusions in SLP(Crl.)No.3901/2003 shall be equally applicable
to this case in view of the fact that the position in law is the same on the
similar fact situation of this case as well, though the dates are different.
appeal is allowed. The order of the High Court is set aside and the writ
petition filed in the High Court shall stand dismissed.