SUPREME COURT OF INDIA
Naresh Kumar Goyal
Vs
Union of India
Criminal Appeal No. 1302 of 2005
(B.P.Singh and Tarun Chatterjee)
05/10/2005
B.P. SINGH, J.
1. Special leave granted.
2. In this appeal the appellant impugns the order of detention passed against
him by the State of Bihar on September 4, 2002 in exercise of powers conferred
by Section 3(i), (ii) and (iii) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974
(hereinafter referred to as 'the Act'). The High Court by its impugned judgment
and order dated September 17, 2003 dismissed the writ petition and held that
this was not an appropriate case in which the High Court could exercise its jurisdiction
under Article 226 of the Constitution of India to quash an order of detention
even before its execution. The correctness of the aforesaid view of the High
Court is challenged before us.
3. The facts of the case are few and not disputed.
4. The appellant claims to be one of the partners of M/s. Prakash Transport, a
partnership firm having its principal place of business at Kolkatta with branch
offices all over India including one at Raxaul in the State of Bihar. The firm
is engaged in the business of transportation of goods by road by hiring public
carrier trucks. According to the appellant, on August 28, 2001 a Nepalese firm
M/s. Prakash International Carriers Pvt. Ltd., Kathmandu, Nepal, hired a
vehicle owned by one Shri Vishwanath Prasad Kanu, a Nepalese citizen, for
transportation of goods from the godown of the appellant's firm at Raxaul to
Nepal. The appellant has no concern with the Nepalese firm M/s. Prakash
International Carriers Pvt. Ltd. The truck hired by the aforesaid Nepalese firm
was detained at the Indian Land Custom Station at Raxaul and an idol kept in a
wooden box was recovered. This led to the search of the premises of the
appellant's firm at Raxaul and the search resulted in the recovery of another
idol kept in a wooden box. The statement of the driver of the truck was
recorded on August 29, 2001 and on the basis of his statement the complicity of
the appellant was discovered. Accordingly his house at Kolkata was searched on
September 11, 2001 and his statement recorded. On February 22, 2002 a notice
was issued to the appellant to show cause as to why penalty be not imposed, and
a criminal case was also registered against him on April 16, 2002. Subsequently
the appellant was released on bail in the criminal case on August 16, 2002. The
impugned order of detention was passed on September 4, 2001, but till the
appellant filed the writ petition on June 25, 2003, the order of detention had
not been executed by serving it upon the appellant.
5. The case of the appellant is that in the criminal case, he appeared in
person uptil December 20, 2002, even after the order of detention had been
passed, and yet no effort was made to arrest him. No process under Section 7 of
the Act was issued against him even though it is the case of the respondents
that the appellant had been absconding. It is the case of the appellant that
the detaining authority, the State of Bihar, took no effective steps whatsoever
to arrest the appellant which showed that the order of detention had been
passed for a purpose other than for which his detention under the Act could be
justified. The fact that the State Government did not exercise its power under
Section 7 of the Act is not disputed before us. All that has been shown to us
by the learned counsel appearing on behalf of the State is that some
correspondence was exchanged between the Criminal Investigation Department of
the Government of Bihar with the Commissioner of Police, Kolkata, West Bengal.
It was stated in the counter-affidavit filed on behalf of respondent No.5
before the High Court that though a request had been made for immediate
compliance of the preventive detention order under the Act to the Commissioner
of Police, Kolkatta, no action was taken. Several such letters addressed to the
police authorities of the State of West Bengal, however, yielded no result.
6. Having regard to the facts and circumstances of the case, it appears to
us prima facie, that there has been delay in the execution of the detention
order and the State of Bihar has not taken effective steps to arrest the
appellant and serve the order of detention upon him. This, however, should not
be considered to be our concluded opinion in the matter, since it is always
open to the detenue to challenge the order of detention after arrest, and the
question of delay in issuance or implementation of the order can be raised in
such proceeding. #
7. The real issue which arises in the instant appeal is whether the High Court
was justified in law in not exercising its discretion under Article 226 of the
Constitution of India to quash the order of detention at the pre-arrest stage.
8. Learned counsel for the appellant submitted that once it is shown that the
State has taken no steps to execute an order of detention and the explanation
furnished by the State is unsatisfactory, it must be held that the order of
detention was not issued for the purpose for which it could be issued under the
Act, and necessarily implied that the real purpose was something else, not
authorized by law. In such a case it made no difference whether the appellant
moved the High Court at the pre-arrest stage or after his arrest pursuant to
the order of detention. He emphasized that expeditious steps must be taken by
the State both in the matter of passing the order of detention and in executing
the same. Both are lacking in the instant case. The order of detention was
passed on September 4, 2002 while the complicity of the appellant is alleged to
have been discovered on August 29, 2001 on the basis of the statement of the
driver of the vehicle. In the matter of implementation of the order as well,
there was considerable apathy and lethargy, since the order was not even
executed till the date the writ petition was filed on June 25, 2003.
9. It is trite law that an order of detention is not a curative or
reformative or punitive action, but a preventive action, avowed object of which
being to prevent the anti-social and subversive elements from imperiling the
welfare of the country or the security of the nation or from disturbing the
public tranquility or from indulging in smuggling activities or from engaging
in illicit traffic in narcotic drugs and psychotropic substances etc.
Preventive detention is devised to afford protection to society. # The
authorities on the subject have consistently taken the view that preventive
detention is devised to afford protection to society. The object is not to
punish a man for having done something but to intercept before he does it, and
to prevent him from doing so. It, therefore, becomes imperative on the part
of the detaining authority as well as the executing authority to be very
vigilant and keep their eyes skinned but not to turn a blind eye in securing
the detenue and executing the detention order because any indifferent attitude
on the part of the detaining authority or executing authority will defeat the
very purpose of preventive action and turn the detention order as a dead letter
and frustrate the entire proceedings. Inordinate delay, for which no adequate
explanation is furnished, led to the assumption that the live and proximate
link between the grounds of detention and purpose of detention is snapped. # (See
: P.U. Iqbal vs. Union of India and others : ; Ashok Kumar vs. Delhi
Administration : and Bhawarlal Ganeshmalji vs. State of Tamilnadu :
.
10. It is not necessary for us to multiply authorities because no exception can
be taken to the above proposition enunciated by this Court in a series of
decisions.
11. Mr. B.B. Singh, learned counsel appearing on behalf of the State of Bihar,
submitted before us that the question involved in the instant appeal is not
whether the order of detention should be struck down on the ground that the
State of Bihar has not taken necessary steps to implement the order of
detention, but whether at the pre-arrest stage the High Court should have
exercised its jurisdiction under Article 226 of the Constitution of India to
quash the order of detention on such grounds. He submitted that the decisions
of this Court have taken the view that exercise of discretion under Article 226
of the Constitution of India can be justified only in appropriate cases and the
scope for interference is very limited. Normally the Court would not interfere
with the order of detention at a pre-arrest stage under Article 226 of the Constitution
of India. He submitted that there are only 5 exceptions to this rule which
would justify interference by the Court at the pre-execution stage with the
order of detention. Those five situation have been enumerated in the case of
Additional Secretary to the Government of India and others vs. Smt. Alka
Subhash Gadia and another: 1992 (S) SCC 46 (distinguished);
"As regards his last contention, viz., that to deny a right to the
proposed detenue 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 used and are declined
to be used by the courts. To accept Shri Jain's present contention would mean
that the courts should disregard all these time-honoured and well-tested
judicial self-restraints and norms and exercise their said powers, in every
case before the detention order is executed. Secondly, as has been rightly
pointed out by Shri Sibal for the appellants, as far as detention orders are
concerned if in every case a detenue is permitted to challenge and seek the
stay of the operation of the order before it is executed, the very purpose of
the order and of the law under which it is made will be frustrated since such
orders are in operation only for a limited period. Thirdly, and this is more
important, it is not correct to say that the courts have no power to entertain
grievances against any detention order prior to its execution. The courts have
the necessary power and they have used it in proper cases as has been pointed
out above, although such cases have been few and the grounds on which the
courts have interfered with them at the pre-execution stage are necessarily
very limited in scope and number, viz., where the courts are prima facie
satisfied 9i) that the impugned order is not passed under the Act under which
it is purported to have been passed, ii that it is sought to be executed
against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that
it is passed on vague, extraneous and irrelevant grounds or (v) that the
authority which passed it had no authority to do so. The refusal by the courts
to use their extraordinary powers of judicial review to interfere with the
detention orders prior to their execution on any other ground does not amount
to the abandonment of the said power or to their denial to the proposed
detenue, but prevents their abuse and the perversion of the law in
question." *
12. In Union of India and others vs. Parasmal Rampuria : , when the order
of detention passed under the Act was sought to be challenged at the pre-arrest
stage, this Court called upon the respondent first to surrender pursuant to the
detention order and then to have all his grounds examined on merit.
13. In Sayed Taher Bawamiya vs. Joint Secretary to the Government of India and
Others : 2, an argument was advanced before
this Court that the exceptions enumerated in Alka subhash Gadia (supra) were
not exhaustive. The submission was repelled and this Court observed:-
"As we see it, the present case does not fall under any of the
aforesaid five exceptions for the court to interfere. It was contended that
these exceptions are not exhaustive. We are unable to agree with this submission.
Alka Subhash Gadia case 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". *
14. In Union of India and others. vs. Muneesh Suneja : 20 (relied on), the challenge was to the order of the
High Court quashing the order of detention at the pre-arrest stage on two
grounds, first that there had been delay in making the order of detention and
second that after making the order of detention no effective steps had been
taken to executive the same except to make a vague allegation that the
respondent was absconding. This Court noticed the exceptional circumstances
justifying interference by the High Court at pre-arrest stage enumerated in
Alka Subhash Godia (supra). This Court, thereafter, set aside the order made by
the High Court observing:-
"This Court has been categorical that in matters of pre-detention cases
interference of court is not called for except in the circumstances set forth
by us earlier. If this aspect is borne in mind, the High Court of Punjab and
Haryana could not have quashed the order of detention either on the ground of
delay in passing the impugned order or delay in executing the said order, for
mere delay either in passing the order or execution thereof is not fatal except
where the same stands unexplained. In the given circumstances of the case and
if there are good reasons for delay in passing the order or in not giving
effect to it, the same could be explained and those are not such grounds which
could be made the basis for quashing the order of detention at a pre-detention
stage. Therefore, following the decisions of this Court in Addl. Secy. to the
Govt. of India vs. Alka Subhash Gadia and Sayed Taher Bawamiya vs. Jt. Secy to
the Govt. of India, we hold that the order by the High Court is bad in law and
deserves to be set aside". *
15. Coming to the facts of this case, at the highest the case of the appellant
is that the order of detention was belatedly passed and the State of Bihar
thereafter took no steps whatsoever to implement the order of detention.
Counsel for the appellant sought to bring this case under the third exception
enumerated in Alka Subhash Gadia (supra), namely, that the order was passed for
a wrong purpose. In the facts and circumstances of this case, it is not
possible to accept the submission that the order was passed for a wrong
purpose. Apparently the order has been passed with a view to prevent the
appellant from smuggling goods or abetting the smuggling thereof etc. # The
facts of the present case are no different from the facts in Muneesh Suneja
(supra). We do not find that the case falls within any of the exceptions
enumerated in Alka Subhash Godia (supra). The High Court was, therefore,
justified in refusing to exercise jurisdiction under Article 226 of the
Constitution of India to quash the order of detention at the pre-arrest stage.
This appeal is, therefore, devoid of merit and is dismissed.