KANCHANLAL MANEKLAL CHOKSHI v. THE STATE OF GUJARAT & Ors.

In the instant case the grounds of detention served on the appellant oon taineci a very elaborate statement of facts quite clearly pointing to an appli cation of the mind by the detaining authority. The appellant did not complain in his petition that the detaining authority had not applied its rpind and in particular had not considered the question of the possibility of a prosecution nor were there any facts appearing from the record which could lead to the conclusion that the detaining authority did not apply its mind to .relevant considerations. The order of detention. is not infirm in any manner. [60 E-F] c; - ., Bhuthnath Mate v. The Stale of West Bengal, [1974] 3 SCR 315; Sri/a/ Shaw v. State of West Bengal & Ors., AIR 1975 SC 393; Abdul Gaffer v. State of West Bengal, .AIR 1975 SC 1496; Dula/ Roy v. The District Magis trate, Burdwan & Ors., [1975] 3 SCR 186; Salim v, State of West Bengar, (1975] 3 SCR 394; explained. D CRIMINAL APPELLATE JURISDICTION : 193 of 1979. Criminal Appeal No. From the Judgment and Order dated 23-1-1979 of the Gujarat E Hight Court in Special Criminal Application No. 8/79. P. H. Parekh and M. Mudgol foe the Appellant. N. M. Phadke, S. P. Nayyar and M. N. Shroff for the Respon dent. The Judgment of the Court was delivered by F CHINNAPPA REDDY, J.-Kanchanlal Maneklar Chokshi who is in preventive detention under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 197 4 issue of a writ of Habeas Corpus was and whose petition for the rejected by the High Court of Gujarat is the appellant in this appeal. G The High Court, while rejecting the petition, granted a certificate un- der Article 133(1) of the Constitution that the case involved a subs tantial question of law of general importance which needed to be de cided by the Supreme Court. The substantial question of law so certiJied was 'whether it is necessary for the detaining authority to consider whether a person should be prosecuted before an order of H detention is made against him'. The Division Bench of the Gujarat High Court in rejecting the particular contention of the appellant 5-475 SCI/79 I ~ A B c D E (I G H 56 SUPREME COURT REPORTS [1980] l S.C.R. purported to follow an earlier dec:sion of another Division Bench of In that the same Court in Ashok Murlidhar v. State o! Gujarat.(') case Divan C. 1., and Majumdar, J., though inclined to the view that launched should be the possibility of a criminal prosecution being present to the mind of the detaining authority, felt constrained hold otherwise because of what, they thought had been decided by this Court in Hardhan Saha & Anr. v. State of West Bengal & Ors.('). In our view, lhis Court did not say in Hardlwn Saha v. State of West Bengal that the possibility of a prosecution being laun ched was an irrelevant cons:'deration which need never be present to the mind of the detaining authority. On the other hand, we do not also think that it is axiomatic, as sought to be contended by the learn ed Counsel for the appellant, that the detaining authority must in variably consider the possibility of launching a prosecution before mak ing an order of detention and that, if not, the order of detention must necessarily be held to be bad. In Hardhan Saha v. State of West Bengal, the vires of the provi sions of the Maintenance of Internal Security Act was in question. One of tl1e contentions was that Section 3 of the "Act offended Article 14 of the Constitution as it permitted 'the same offence to be a ground It was submitted for detention in different and discriminatory ways'. that while A might be prosecuted but not detained preventively, B might not be prosecuted but only detained preventively and C might be both prosecuted and detained preventively. Dealing with the con tention, a Bench of five judges of this Court explained the basic dis tinction between preventive detention and detention following upon conviction and observed : It may or may not relate to an offence. "The power of preventive detention is qualitatively diffe rent from punitive detention. The power of preventive in reasonable detention is precautionary power exercised It anticipation. is not a parallel proceeding. It does not overlap with pro secution even if it relies on certain facts for which prose cution may be launched or may have been launched. An order of preventive detention may be made before or dur ing prosecution. Au order of preventive detention may be made with or without prosecution aud in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution". (I) (2) l'!pecirJ Criminrl Application No. 230 of 1978. (1975] I SCR 778. ,..,_ . ' • -• K. M. CHOKSHI v. GUJARAT (Chinnappa Reddy, !.) 57 The Court then referred to various earlier decisions and deduced the following principles : l -- "First merely because a dctcnu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from com mitting offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Govern ment from taking action for his detention under the Act. Second, the fact that the police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the p.reventive detention. Third, where the concerned person is actually in jail cus tody at the time when an order of detention is passed against him and is not length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precau tionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances". likely to be released for a fair Clearly, the Court did not lay down that the possibility of a pro secution being launched was an irrelevant considera0tion, not to be borne in mind by the detaining authority. All that was laid down was that the mere circumstance that a detenu was liable t'o be prosecuted was not by itself a baor to the making of an order of preventive deten tion. It does not follow therefrom that failure to consider the poJsi bility of a prosecution being launched cannot ever lead to the con clusion that the detaining authority never applied its mind and the order of detention wa·s, therefore, bad. In Bhutnath Mate v. State of West Bengal(') Krishna Iyer and Sarkaria JJ., declared the detention illegal for denial of opportu nity to inakc effective representation. On the question whether the failure of crimin'ill prosecution was a bar to preventive detention the answer was a definite 'no'. The learned judges however expressed (I) [1974] 3 SCR 315. I • · .. ~- A B c D E F G H 58 SUPREME COURT REPORTS [1980) 1 S.C.R. A B c D E F G apprehension against the danger to the democratic way of life inherent in 'the potential executive tendency to shy at Conrts for prosecution of ordinary offences and to rely generously on the easier strategy of subjective sati;;faction'. The question presently under consideration, namely, whether the failure of the detaining authority to keep in mind the pos>ibility of a prosecution would necessarily vitiate the order of detent10n was not considered by the learned judges. In Sri/al Shaw v. State of West Bengal & Ors.('), the prosecution was dropped and thereafter an order of preventive detention was passed. The substance of the allegation against the detenu was that he was in unlawful possession of scrap metal belonging t'o the Rail way. The Court came to the conclusion that on the material which was available to the detaining authority, it was impossible to arrive at the conclusion that the possession of the petitioner was unlawful. The Court found that the reason given by the District Magistrate for It was observed that the dropping the prosecution was unacceptable. prosecution was in all probability dropped as the petitioner might have been able to establish that his possession of the goods was not unlawful. The case struck the Court as a typical case in which no apparent reason a person who could easily be prosecuted under It is seen that the the punitive law was being preventively detained. decision turned on the peculiar facts of the case and throws no light on the question presently raised before us. In Abdul Gaffer v. State of West Bengal(') the order of deten tion was passed on the basis of a few instances of theft of Railway property for which the detenu could well and easily have been pro secuted. The contention before the Court was that the order of detention was passed by the detaining authority mechanically without applying its mind to the question whether the facts disc16sed · the tendency of the petitioner to· act prejudicially in the manner mention ed in the detention order. The bald and sweeping allegation was made in the counter filed on behalf of the State that material witnesses were afraid of giving evidence in the Court against the detenu. The material witnesses were members of the Railway Protection Force. In that situation Sarkaria J., observed that the version given in the counter was incredible and could not be learned Judge then observed "tM conclusion therefore is inescapable that the petitioner has been preventively detained without application ?f mind as to whether the prosecution against him was foredoomed to failure on the ground of witnesses being afraid fo depose against the detenu swallowed. The