1 wp10309 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 103 OF 2009 WITH CRIMINAL APPLICATION NO. 398 OF 2010 Ajay Bajaj ] Age 36 years, an Indian inhabitant, ] residing at : A-112, Derawala Nagar, ] Opp. Model Town, Delhi 110 009 ] ...Petitioner VERSUS 1. The State of Maharashtra, ] through the Secretary to the Government ] of Maharashtra, Home Department (Special), ] Mantralaya, Mumbai 400032 ] 2. Smt. Anna Dani, ] Principal Secretary (Appeals & Security), ] Government of Maharashtra, ] Home Department & Detaining Authority, ] Home Department (Special), Mantralaya, ] Mumbai 400032 ] 3. Station House Officer, ] Model Town Police Station, Delhi 110 009 ] ...Respondents WITH CRIMINAL WRIT PETITION NO. 1645 OF 2010 Suresh D. Hotwani, ] aged 51 years ] (Friend of the Detenu Nitesh Ashok Sadarangani) ] Residing at /201, Trishul Ganga, ] Sindhi Society, Chembur, Mumbai 400 071 ] ...Petitioner VERSUS 2 wp10309 1. The Union of India ] the Secretary to the Government of India, ] Ministry of Finance, Department of Revenue, ] Janpath Bhavan, New Delhi ] (through Central Govt. Counsel, ] Aaykar Bhavan Annexe, 2nd Floor, M.K. Road, ] Mumbai 400020) ] 2. The Principal Secretary ] (Appeals & Security) & Detaining Authority, ] Home Department (Special), ] Government of Maharashtra, Mantralaya, ] Mumbai 400032 ] 3. State of Maharashtra, ] through the Secretary (Home), ] Home Department, Mantralaya, ] Mumbai 400032 ] WITH CRIMINAL WRIT PETITION NO. 2675 OF 2010 AND CRIMINAL APPLICATION NO. 532 OF 2010 Anil Kailash Jain ] Age about 35 years, ] An Indian Inhabitant, Residing at F-56, ] Preet Vihar, New Deli 110 092 ] ...Petitioner VERSUS 1. The State of Maharashtra, ] through the Secretary to ] the Government of Maharashtra ] 2. The Principal Secretary to ] the Government of Maharashtra, ] Home Department, Mumbai ] 3. The Union of India ] (Through officers of D.R.I.) ] ...Respondents 3 wp10309 Mrs. A.M.Z. Ansari with Mrs. Nasreen Ayubi for the Petitioners in Writ Petitions No. 103 of 2009 and 2675 of 2010 Mr. Sujay Kantawala with Mr. Brijesh Pathak i/by Mr. Yogesh Rohira for the Petitioner in Writ Petition No. 1645 of 2010 Mr. Mandar Goswami with Ms. Revati Mohite-Dere for Respondent No. 1 in Writ Petition No. 1645 of 2010 Mr. D.P. Adsule, Additional Public Prosecutor, for the State in all matters. CORAM: A.M. KHANWILKAR AND P.D. KODE, JJ. DATE OF RESERVING: 20TH OCTOBER, 2010 DATE OF PRONOUNCING: 05TH JANUARY, 2011 JUDGMENT (Per A.M. Khanwilkar, J.):- By this common judgment, we propose to dispose of all the three petitions, as the issues raised are overlapping. The same are filed under Article 226 of the Constitution of India for quashing of detention order passed against the concerned proposed detenues, before execution of the detention order qua them. 2. The question, as to whether writ petition before execution of the detention order is maintainable, is no more res integra. The leading judgment on the point is of a three-Judge Bench of the Apex Court in the 4 wp10309 case of Additional Secretary to the Government of India & Ors. v. Smt.Alka Subhash Gadia & Anr., reported in 1992 SCC (Cri) 301 = 1992 Supp (1) SCC 496. The legal position expounded in the said decision has been consistently followed in several other reported judgments. In this decision, the Apex Court has observed that the Courts have the necessary power and they have used it in proper cases, although such cases have been few and the grounds on which the Courts have interfered with the detention order at the pre-execution stage are necessarily very limited in scope and number, viz., where the Courts are, prima facie, satisfied (i) 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 the 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. 3. The question, whether the abovenoted five grounds adumbrated by the Apex Court in Gadia's case are illustrative or exhaustive, has also been answered by the Apex Court. That aspect has been elaborately considered as a preliminary question in Criminal Writ Petition No. 103 of 2009 along with other companion matters. This judgment is reported in 2009 (4) Mh.L.J. 647 in the case of Manish 5 wp10309 Purshottam Atmaramani v. State of Maharashtra & Ors. The Division Bench, after analysing all the relevant judgments of the Apex Court on the point, including the decision in Deepak Bajaj v. State of Maharashtra, reported in 2008 (16) SCC 14, on which strong reliance was placed by the petitioners, has held that the settled legal position is that the grounds adumbrated by a three-Judge Bench of the Supreme Court in Gadia's case were exhaustive and not illustrative. Further, the Division Bench of this Court, while answering the said issue, has noted that this Court would be bound by the opinion of the three-Judge Bench of the Supreme Court, in particular the decisions referred to therein. It chose to follow those decisions and not the dictum in the case of Deepak Bajaj (supra) or, for that matter, Rajinder Arora v. Union of India, reported in (2006) 4 SCC 796, and Maqsood Yusuf Merchant v. Union of India, reported in (2008) 16 SCC 31; as these decisions were of two-Judge Bench of the Apex Court. The Division Bench has noted that, on more than one occasion, this specific argument, that the five grounds articulated in Gadia's case were illustrative or exhaustive, has been directly answered by the Apex Court. Thus, it followed that opinion, as it was binding on it. After recording the above opinion, the Division Bench then directed to place the respective writ petitions for further hearing on merits. Insofar as the petitioner in Writ Petition No. 103 of 2009 is concerned, he has 6 wp10309 allowed the said decision to become final. In that view of the matter, the opinion so recorded would not only bind the petitioner in the said Writ Petition but even us. 4. The counsel appearing for the petitioners in companion Writ Petitions wanted us to re-consider the said question. However, we are in respectful agreement with the opinion of the Division Bench in Atmaramani's case (supra) that the exposition of the larger Benches of the Supreme Court on the point in issue would be binding on this Court. Indeed, the attempt of the petitioners was to persuade us to take the view that the latter decisions by a two-Judge Bench of the Supreme Court have considered all the earlier decisions of the Apex Court, including of larger Benches, and being subsequent in point of time, would bind this Court and ought to be followed. We would advert to the other decisions referred by the petitioners a little later. Suffice it to observe that we will have to examine whether the grievance of the petitioners before us, is covered by any of the five grounds specified in Gadia's case (supra) or the species thereof. 5. The counsel for the petitioners would contend that in each of these petitions, the common grievance is that there has been undue delay 7 wp10309 in issuance of detention order; as also in the execution thereof for considerably long time, rendering the purpose for which it has been issued either non-existent or stale. Besides, there has been non-compliance of the mandatory requirements, and the lapses so committed by the Detaining Authority has vitiated the respective detention order. It was submitted that instead of examining those issues in the present petitions, the petitioners may be allowed to make representation to the Government in terms of Section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the COFEPOSA" for the sake of brevity), which could be considered by the Government on its own merits, keeping in mind the consistent legal position expounded in the decisions of the High Courts and the Supreme Court. 6. To buttress this submission, reliance was placed on the order of the Division Bench of Delhi High Court in the case of Bhavna Mehra v. Union of India & Ors. in Writ Petition (Crl) No. 274/2009 dated 25th May, 2009. In that case, the Court permitted the petitioner to withdraw the writ petition challenging the detention order at the pre-execution stage, and, instead, make comprehensive representation to the Government. Further, the Government was directed to decide the said representation 8 wp10309 within specified time; and until the representation was finally decided, it was ordered that no coercive steps be taken against the petitioner. Strong reliance was placed on this order to persuade us to follow the same route. We are not impressed by this argument. In the first place, in the petitions before us, it is noticed that representation was made to the State Government, and the same has already been rejected. That position has been communicated to the petitioners. Besides, our attention is invited to the fact that the decision of the Delhi High Court in the case of Bhavna Mehra (supra) has been assailed by Union of India by way of Special Leave Petition (Criminal) No. 6513 of 2009, which has been admitted on 26th August, 2010 by the Apex Court. To get over this position, counsel for the petitioners contended that the rejection order communicated to the petitioners by the appropriate Government is identical to the order passed by the appropriate Government in the case of Bhavna Mehra, and the Delhi High Court frowned upon the said order as having been passed on the ground, which was not available. The Delhi High Court construed the said order to mean that it was an unsolicited advice given to the petitioner before that Court, and more so, indicative of the fact that the authority had already made up its mind to reject the same. With due respect, we do not find merits in this analogy drawn by the petitioners before us. In our opinion, the order of rejection, in our case, in clear terms, mentions that 9 wp10309 the authority has carefully considered the relevant material, and has rejected the representation. It is well-established position that the authority is not expected to give reasons for such rejection. The fact that incidentally, the authority records that the proposed detenu ought to surrender and submit to the process of law does not vitiate the satisfaction reached by the appropriate authority for rejecting the representation, more so when it is stated before us, on affidavit, that the representation was duly considered, keeping in mind all aspects, but was found to be devoid of merits. 7. Indubitably, the power to execute detention order vests in the appropriate Authority. Indeed, Section 11 of the Act provides that it is open to the appropriate Government to reject or modify the detention order "at any time". That does not mean that the appropriate Government can be directed by the Court to consider fresh representation to be made by the petitioners herein. It would inevitably result in calling upon the Government to review its earlier order. 8. Accordingly, we are not impressed with the suggestion made by the petitioners that they may be permitted to make comprehensive representation to the appropriate Government and that the same can be 10 wp10309 decided on its own merits, in accordance with law, and until such time, no coercive action be taken against the proposed detenues. Such direction, if passed, would result in restraining the authority from discharging its statutory duty or directing it to refrain from discharging its duty for a specified time. Further, the fact that there is remedy to make representation under Section 11 of the Act "at any time" does not mean that the Court would issue direction to the authority not to act against the proposed detenu, in spite of a subsisting detention order. Moreover, the fact that such representation is made by the detenu does not preclude the Detaining Authority to proceed with the execution of the detention order in operation; nor would it extricate the detenu from the consequence flowing from a subsisting detention order. 9. It was then contended that going by the admitted facts, there has been undue delay in issuance of the detention order as well as even at the stage of execution thereof. Thus, the live link between the date of detention and the alleged prejudicial activities has snapped due to passage of time. Reliance was placed on unreported decision of Delhi High Court in the case of Smt. Malini Mukesh Vora v. Union of India & Ors. decided on 3rd July, 2009 in Writ Petition (Crl) No. 37/2009. Indeed, in this case, the relief claimed in respect of detention order was at the pre- 11 wp10309 execution stage. The first preliminary issue considered by the Court was whether the Delhi High Court had territorial jurisdiction to entertain the writ petition. It then went on to consider the arguments on merits that the detention order was illegal since its inception, and in any case, it had become stale, and the link between the detention order and the object of detention has been snapped due to efflux of time. Consequently, the detention order has lost its relevance. This argument found favour with the Delhi High Court. The same has been accepted, keeping in mind the exposition in the case of Gopa Manish Vora v. Union of India & Anr., decided by the Delhi High Court on 10th February, 2009 in Writ Petition (Crl) No. 2444 of 2006, which, in turn, had placed reliance on the decision of the Apex Court in the case of Maqsood Yusuf Merchant (supra). In that case, the Delhi High Court proceeded to observe as of fact that the live link between the date of detention and the alleged prejudicial activities has been snapped by passage of time; and more so, in absence of any material on record to show that the proposed detenu has continued to indulge in such activities. Having said this, the Court then proceeded to observe that the question regarding maintainability of writ petition challenging a detention order at the pre-execution stage was intertwined with the above issue; and for that reason, it was open to the Court to entertain the writ petition, and cancel the detention order in question. 12 wp10309 10. Reverting to the decision of the Apex Court in Maqsood Yusuf Merchant (supra), indeed, it was a case of challenge to detention order at the pre-execution stage, and the Court not only entertained the writ petition, but also quashed the detention order essentially on the ground that continuing the said order would be an exercise in futility. In the first place, the said decision is on the facts of that case. Further, it is not a decision on the proposition expounded by a three-Judge Bench of the Apex Court in Gadia's case (supra). Nor it is a decision on the proposition as to whether the five grounds specified in Gadia's case were illustrative or exhaustive. Moreover, this is a decision only of a two-Judge Bench, which proceeds to answer the controversy on the basis of facts before it. In the case before the Supreme Court, the detention order was passed on 19th March, 2002, but was not executed till the filing of the writ petition. The appellant and other detenu had approached the Settlement Commissioner appointed under the Customs Act, 1962 on 13th July, 2007, and ultimately, the matter was settled by an order by the Commissioner on 11th September, 2007. The Settlement Commission, while granting immunity, took note of the fact that the requisite amount was already deposited. The Apex Court then noted the concession of the counsel for Union of India who fairly stated, on instruction, that since the order of 13 wp10309 detention was passed, the appellant had not indulged in similar activities. Primarily, on the basis of this concession, the Apex Court took the view that the continuation of the order of detention would be an exercise in futility. Therefore, while directing not to give effect to the detention order, the Apex Court made it clear that it would be open to the authorities to pass any similar orders in the event similar allegations were raised against the appellant. This decision of the Apex Court, therefore, was on the facts of that case, and cannot be invoked in support of the proposition that non-execution of the detention order by efflux of time would attract any of the five grounds specified in Gadia's case. On the other hand, there are decisions of three-Judge Bench of the Apex Court which have negatived the argument of the petitioner/detenu that delay in issuance or, for that matter, execution will attract the ground of "wrong purpose" specified in clause (iii) in Gadia's case. That decision being of a three- Judge Bench of the Supreme Court would be binding. More so, the question whether the live link has been snapped will depend on facts of each case. Thus understood, the unreported decision of the Delhi High Court in the case of Gopa Manish Vora (supra) is of no avail. 11. We may now turn to the series of authorities rejecting similar challenge to the detention order at the pre-execution stage. For that, 14 wp10309 Gadia's case is the leading decision. It is by a three-Judge Bench of the Supreme Court. The Apex Court opined that in pursuance of self- evolved judicial policy and in conformity with the self-imposed internal restrictions, the Court insists that the aggrieved persons first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court or the Supreme Court to invoke discretionary extra-ordinary and equitable jurisdiction under Articles 226 and 32 respectively. The Apex Court noted the argument advanced on behalf of the appellants (Union of India) therein. As far as the detention orders are concerned, if, in every case, a detenu 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. The Court was conscious of the cherished Fundamental Rights of the citizens, but at the same time, gave due regard to the purpose underlying the issuance of the preventive detention order. In paragraph 27, the Court observed thus:- "The preventive detention law by its very nature has always posed a challenge before the courts in a democratic society such as ours to reconcile the liberty of the individual with the allegedly threatened interests of the society and the security of the State particularly during times of peace. It is as much a deprivation of liberty of an individual as the punitive detention. Worse still, unlike the latter, it is resorted to prevent the possible misconduct in future, though the 15 wp10309 prognosis of the conduct is based on the past record of the individual. The prognosis further is the result of the subjective satisfaction of the detaining authority which is not justiciable. The risk to the liberty of the individual under our detention law as it exists is all the more aggravated because the authority entrusted with the power to detain is not directly accountable to the legislature and the people." 12. In paragraph 28, the Court observed thus:- "It must further be appreciated that the validity of the Act in question being permitted to be enacted by the Constitution, has also been upheld by this Court with all its present provisions as they stand. Howsoever repugnant the notion of preventive detention may be to the champions of individual liberty, it has also to be remembered that the power to make such a law even during peacetime has been incorporated in the Constitution by the framers of the Constitution many of whom had tasted the bitter fruits of such detention law during the struggle for freedom. Whatever may, therefore, be one's own notions about the dimensions of individual liberty, one must accept the provisions of the Constitution as enacted by the mature vision and seasoned experience of the Constitution-makers. We must also not lose sight of the fact that over the years, by and large, the judiciary has interpreted the Act and the orders made thereunder strictly so as to give to the detenu the benefit of every unexplained error of omission and commission and has either struck down the order itself or has held its further operation illegal." 13. The Court rejected the extreme argument of the respondents in that case. That, the individual has an absolute right to liberty and the burden is on the State to satisfy that it is necessary to deprive the individual of its liberty before apprising him of the ground of his detention. It held that such plea was clearly against the relevant provisions of the Constitution. 16 wp10309 14. In paragraph 29, it observed thus:- "...These provisions of the Act have not been faulted on any account. In the face, therefore, of the clear provisions of the Constitution and of the valid Act, it is not open to contend that the provisions of Articles 14, 19 and 21 of the Constitution prevent a person being deprived of his liberty without first apprising him of the grounds of his arrest. For this very reason, it is also not open to contend that since the State has all the facts in its possession which require the arrest and detention of the person, it must first disclose the said facts before depriving him of his liberty. Since the provisions of Article 22 of the Constitution pointed out above and of the Act made thereunder permit the State to arrest and detain a person without first disclosing the grounds, even though they are in its possession before or at the time of his arrest, this argument is not tenable in law. It must further be remembered that though the provisions of the Constitution and the law enacted for the purpose enable the State or its delegate the detaining authority to detain a person without first disclosing the grounds of detention they do not preclude them from serving the grounds of detention on the detenu along with the order of detention. In fact very often they do so. But Shri Jain's (appearing for the respondents therein) argument goes still further and requires that the order of detention and the grounds of detention should be served on the proposed detenu in advance to enable him to challenge them in a court of law before submitting to the order. In advancing this contention, Shri Jain not only wants to secure to the proposed detenu the right to seek the judicial review of the detention order even before it is executed but also to enable him thereby to by-pass the procedure laid down by the law to challenge it after it is executed. To that extent this contention requires the Court to go a step further and to do something more than what it does or would do while entertaining grievances against orders passed under other laws. The justification advanced to claim this superior right is that under the detention law what is infringed is the liberty of the individual and no individual should be required to surrender it without a prior right to challenge the order in question. As has been elaborately discussed above, however vital and sacred the liberty of the individual, for reasons which need not be discussed over again here, the responsible framers of the Constitution although fully conscious of its implications have made a provision for making a law which 17 wp10309 may deprive an individual of