Constitution of India — Articles 22, 19(1)(d), 21 & 14 — Detention order — Long lapse of execution

August 23rd, 2013

Constitution of India — Articles 22, 19(1)(d), 21 & 14 — Detention order — Long lapse of execution — Non-execution due to absconding by the detenue, continuation of — Held, CJI Kabir, power vested in vested in the Authorities when a proposed detenue absconds himself under ordinary law — There is sharp difference between preventing detention and ordinary criminal laws — Detention order cannot be continued after long lapse of execution — Misra J., in a series of judgments this Court settled that nobody can take advantage of his own absconding or evasion from the authorities and authorities have no approach till challenge of the detention order before the Court — In these circumstances detention order cannot be quashed on the ground of long lapse of time — Chelmeswar J., those who have evaded the process of law shall not be heard by this Court to say that their fundamental rights are in jeopardy — Challenged to accused on live nexus is impermissible — Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 — Sections 6 & 7 — National Security Act, 1980 — Sections 6 & 7 — Criminal Procedure Code, 1973 — Sections 82 to 85.

Dropti Devi’s case, Amrit Lal Manchanda’s, M. Ahamedkutty’s, Sunil Fulchand Shah vs. Union of India, (2000) 3 SCC 409, Sayed Taher Bawamiya vs. Govt. of India, (2000) 8 SCC 630, Hare Ram Pandey vs. State of Bihar & Ors., (2004) 3 SCC 289, Union of India vs. Amrit Lal Manchanda & Anr., (2004) 3 SCC 75 and Union of India vs. Vidya Bagaria, (2004) 5 SCC 577, Union of India & Ors. vs. Atam Parkash & Anr., (2009) 1 SCC 585, Bhawarlal Ganeshmalji vs. State of Tamil Nadu And Anr., (1979) 1 SCC 465 Vinod K Chawla vs. Union of India & Ors., (2006) 7 SCC 337, Union of India vs. Parasmal Rampuria, (1998) 8 SCC 402, Chelmeswar J., Bhawarlal Ganeshmalji Vs. State of Tamil Nadu & Anr., (1979) 1 SCC 463, Ahamedkutty Vs. Union of India & Anr., (1990) 2 SCC 1, Union of India & Ors. Vs. Arvind Shergill & Anr., (2000) 7 SCC 601, Referred.

HELD: (As per CJI Kabir): It will be seen from the provisions of Section 7 that if the appropriate Government has reason to believe that a person in respect of whom a detention order has been made, is absconding, or is concealing himself so that the order cannot be executed, the Government may take recourse to the provisions of Sections 82, 83, 84 and 85 of the Code of Criminal Procedure and his property, as if the order directing him that he be detained were a warrant issued by the Magistrate. Section 7(1)(b) also provides for penal consequences, in the event directions given thereunder, are not complied with by the proposed detenue.

(Para 45)

In my view, the said provisions clearly enumerate the powers vested in the Authorities when a proposed detenue absconds. That, in my view, is the ordinary law of the land, and not preventive detention, which is meant to prevent the commission of offences, and not to punish an individual for violation of statutory provisions. Accordingly, in my view, the submissions made on behalf of the Union of India and the State of Maharashtra, cannot be accepted and absconsion cannot, therefore, be made a ground for making an order of preventive detention.

(Para 48)

(As per Misra J.): There is absolutely no difficulty in accepting the unequivocal position that the purpose of passing the order of preventive detention is not punitive but merely preventive which clearly means that if the authorities are in possession of sufficient materials indicating that the proposed detenue had been indulging in economic offences violating the provisions and jumping the riders imposed by the COFEPOSA Act or other Acts of similar nature, then whether such order can be allowed to be set aside merely due to long lapse of time accepting the plea that there is no live link between the order sought to be quashed and the intention of the authorities to detain the detenue by virtue of such detention order. This Court in a series of decisions, some of which have been referred to hereinafter have consistently dealt with this question and have been pleased to hold that merely because the execution of the detention order has taken long years before it could be executed, the proposed detenue cannot be allowed to take advantage of the passage of time during which the detention order remain pending and thereafter take the plea that the order of detention is fit to be quashed due to its pendency on which the authorities had no control specially when the order of detention is allowed to be challenged before the appropriate court even at the pre-execution stage on any ground that may be available to him except of course the materials which has weighed with the authorities to pass the order of detention as it is obvious that justifiability of the material cannot be gone into at the pre-execution stage since the order of detention and the ground for such order is yet to be served on the proposed detenue as the proposed detenue was absconding or evading the execution of the order on him for one reason or the other.

(Para 61)

(As per Chelameswar J.): Those who have evaded the process of law shall not be heard by this Court to say that their fundamental rights are in jeopardy. At least, in all those cases, where proceedings such as the one contemplated under Section 7 of the COFEPOSA Act were initiated consequent upon absconding of the proposed detenu, the challenge to the detention orders on the live nexus theory is impermissible. Permitting such an argument would amount to enabling the law breaker to take advantage of his own conduct which is contrary to law.

(Para 97)

Subhash Popatlal Dave v. Union of India[Bench Strength 3], Writ Petition (Crl) No. 137/2011(16/07/2013), 2013(9) SCALE 295 [Altamas Kabir, C.J.: Gyan Sudha Misra, J.: J. Chelameswar, J.]

Entry Filed under: Legal Updates

Leave a Comment


Required, hidden

Some HTML allowed:
<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

Subscribe to the comments via RSS Feed

News That Matters

Recent Posts


Important Links