STATE OF MAHARASHTRA & Ors. v. BHAURAO PUNJABRAO GAWANDE

detention of a person against whom an o_rder of detention is made is sine qua non or condition precedent for approaching a Court of Law, normally and as a general rule, an order of detention can be challenged by the detenu after such order as also the grounds of detention E have been received by him and the order is executed. In exceptional cases, however, a High Court or this Court may exercise extra-ordinary powers to protect a person against an illegal invasion of his right to freedom by protecting him while still he is free by issuing an F appropriate writ, direction or order including a writ in the nature of mandamus questioning an order of detention and restraining the authorities from interfering with the right of liberty of an individual against whom such order is made. [Paras 35 and 36] [991-D, E, F, G] · G Kiran Pasha v. Government of A.P (1990) 1 SCC 328; Addi. Secretary to the Government of India and Ors. vs. Smt. Alka Subhas Gadia and Anr. 1992 Supp (1) SCC 496 - referred to. H '1 "" J 4- .. i J '{ """' .Ji • • 972 SUPREME COURT REPORTS [2008) 3 S.C.R. A

1.5 The submission that on the facts and in the circumstances of the case, the High Court was right in holding that exception (iii) in Alka Subhash Gadia got attracted inasmuch the order was passed for wrong purpose cannot be accepted. With regard to the authority B of the Commissioner of Police, the High Court was satisfied that the order was passed by the authority competent to exercise the power. It was also clear that the order was passed 'under the Act' since the Detaining Authority was satisfied that the detention of the writ c petitioner was necessary 'with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of essential commodities to the community' i.e. kerosene. The grounds cannot be said to be vague, extraneous irrelevant or non-existent. In fact, the detenu D absconded and grounds could not be served. It is not even alleged that the order is sought to be executed against a wrong person. (Paras 42 and 43] (997-B, C, D, E, F]

1.6 The detenu submitted before the High Court that certain offences had been registered against the detenu E and they were under investigation; that the report of the Chemical Analyzer was not received and yet the Detaining Authority took into account those cases; that offences were registered against the detenu in July, 2003, September, 2005 and May, 2006 and no preventive action F was thought necessary to be taken by the authority at any stage; that it was when the detenu was arrested in 2006 and a complaint was made against 'custodial violence' meted out to him by police authorities while he was in custody; that with a view to save the skin of erring G police officials an illegal order of detention was passed, thus, it was made for 'wrong purpose' and not with a view to prevent the writ petitioner from indulging in black marketing of kerosene. The High Court found 'considerable force' in the submission and held that the order was passed for wrong purpose. The High Court H STATE OF MAHARASHTRA & ORS. v. BHAURAO PUNJABRAO GAWANDE 973 went wrong in observing that once a detenu had made A allegations against the police atrocities and custodial violence, the Detaining Authority ought to have waited till the inquiry was conducted and report submitted. It also erred in holding that two parallel and simultaneous proceedings were not permissible in law. [Paras 44 B and 46] [997-F, G; 998-A, B, C; 999-A] Hardhan Saha v. State of WB. 1975 (3) SCC 198 - followed. Biram Chand v State of UP & Ors (1974) 4 SCC 573 - c referred to.

1.7 Considering the facts on record in their entirety, it is clear that many cases had been filed against the detenu under the 1955 Act. It was alleged that the writ petitioner was indulging in illegal activities of black D marketing of kerosene which was an essentia.I commodity. Those cases had been registered in 2002, 2003, 2005 and 2006. Thus, the action was taken on the basis of past conduct of the detenu having reasonable prognosis of future behaviour and there was 'live link' E between the activities of the detenu and the action of-. preventive detention to reach subjective satisfaction by the Detaining Authority. It has come on record that the detenu was called upon to execute a bond for good behaviour under sections 110 and 111 of the Code of F Criminal Procedure, 1973. Therefore, it is clear that the authorities had taken steps under the relevant law. But even otherwise, such questions may become relevant anJ can be considered after the order of detention is executed. [Para 48] [1001-A, B, C, D] G

1.8 The detention of the writ-petitioner would not be affected if the detenu was ill-treated when he was in custody in connection with any case registered against him under the 1955 Act, or there was custodial violence. Whether there was such custodial violence and whether H . ' 974 SUPREME COURT REPORTS [2008) 3 S.C.R. A police officers had abused their position can indeed be gone into by a competent authority or by a Court of law. That circumstance, however, will not make the order of detention invalid or for a 'wrong pwrpose'. Externment proceedings initiated against the detenu under section B 59 of the Bombay Police Act, 1951 also would not make the action assailable. Therefore, this was not a case in which interference was warranted at pre-execution stage. [Para 49) [1001-D, E, F]

1.9 As a general rule, an order of detention passed c by a Detaining Authority under the relevant 'preventive detention' law cannot be set aside by a Writ Court at the pre-execution or pre-arrest stage unless the Court is satisfied that there are exceptional circumstances specified in Atka Subhash Gadia's case. The Court must D be conscious and mindful of the fact that this is a 'suspicious jurisdiction' i.e. jurisdiction based on suspicion and an action is taken 'with a view to prewmt' a person from acting in any manner prejudicial to ctJrtain activities enumerated in the relevant detention law. E Interference by a Court of Law at that stage must be an exception rather than a rule and such an exercise can be undertaken by a Writ Court with extreme care, caution and circumspection. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support c1f such order. The instant case does not fall within the category of exceptional cases and the High Court exceeded its jurisdiction in entertaining the writ-petition and in quashing and setting aside the order of detention at pre- execution stage and pre-arrest stage. Therefore, the order of the High Court setting aside the detention order is set aside. It is open to the authorities to execute the order of detention. It is equally open to the detenu to challenge the legality thereof on all available grounds. [Paras 58 and 59) [1004-G; 1005-A, B, C, D, E] G F H r ., .. t ... )' • .. STATE OF MAHARASHTRA & ORS. v. BHAURAO PUNJABRAO GAWANDE 975 'I Addi. Secretary to the Government of India and Ors. vs. A ' Smt. Atka Subhas Gadia and Anr. 1992 Supp (1) SCC 496; A.K. Roy v. Union of India 1982 (1) SCC 271; Attorney General for India v. Amritla/ Pranjivandas 1994 (5) SCC 54; Bhut Nath v. State of West Bengal 1974 (3) SCR 315; State of WB. v. Ashok Dey, 1972 (2) SCR 434; ADM Jaba/pur v. Shirakant B Shukla 1976 Supp SCR 132 - relied on. ~ Sapmawia v. Deputy Commissioner, Aijal 1971 (1) SCR 690; Khudiram Das v. State of WB., 1975 (2) SCR 832; Naresh Kumar Goyal v. Union of India 2005 (8) SCC 276; Subhash Muljimal Gandhi v. L. Himingliana & Anr. (1994) 6 c SCC 14; State of Bihar v. Ram Balak Singh (1966) 3 SCR 344; Rajinder Arora v. Union of India & Ors (2006) 4 SCC · 796; K.S. Mangamuthu v. State of Tamil Nadu & Ors (2006) 4 sec 792 - referred to. • , R. V Home Secretary 1999 (2) AC 38 : 1997 (1) WLR 503; Cox v. Hakes 1890 (15) AC 506 : 60 LJQB 89; R V. Secretary of State for Home Affairs; ex parte O'Brien, 1923 (2) KB 361; Darnel, Re 1927 (3) St Tr. 1; Greene v. Secretary of State for Home Affairs 1941 (3) All ER 388 : 1942 AC 284 - referred to. ... y' Halsbury's Laws of England 4th Edn., Vol. 11, para 1454, p. 769 - referred to. CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 417 of 2008. From· the final Judgment and Order dated 17.10.2006 of the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Writ Petition No. 372 of 2006. D E F Manish Pitale and Ravindra Keshavrao Adsure for the G Appellants. ~ J.M. Gandhi, SatyajitA. Desai, Anagha S. Desai, Amol N. Suryawanshi and Venkateswara Rao Anumolu for the Respondent. H 976 SUPREME COURT REPORTS [2008] 3 S.C.R. A The Judgment of the Court was delivered by C.K. THAKKER, J. 1. Leave granted.

#2. The present appeal is filed by the State of Maharashtra and others against the sole respondent (original petitioner) B against the judgment and order passed by the High Court of Judicature at Bombay (Nagpur Bench) on October 17, 2006 in Writ Petition No. 372 of 2006. By the impugned order, the High • Court (partly) allowed the petition filed by the detenu-writ petitioner and set aside the order of detention dated July 27, c 2006 passed by the Commissioner of Police (Nagpur City) under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. FACTUAL MATRIX • '" E 0

#3. The case of the appellants is that one Bhaurao Punjabrao Gawande (detenu) was running a business of transportation of petroleum products and had fleet of tankers for carrying on the said occupation. He was indulging in illegal purchase and sale of blue kerosene oil in black market since last five to six years. Certain cases were also registered against the said Bhaurao under the Essential Commodities Act, 1955 (hereinafter referred to as '1955 Act'). In view of continuous activities of Bhaurao in black-marketing of essential commodity (Kerosene), the Commissioner of Police (appellant No.2 herein), in exercise of power conferred on him by sub-section (1) read F with Clause (b) of sub-section (2) of the Prevention of Black Marketing and Maintenance of Supplies of Essential ..., Commodities Act, 1980 (hereinafter referred to as 'the Act') directed that the said Bhaurao be detained. Grounds of detention were sought to be served to the detenu on the same day. G

#4. According to the appellants, in accordance with sub section (3) of Section 3 of the Act, the order of detention passed by the Commissioner of Police was approved by the State Government. The detenu somehow came to know about the ' ... H order of detention being passed again him and absconded STATE OF MAHARASHTRA & ORS. v. BHAURAO PUNJABRAO GAWANDE [C.K. THAKKER, J.] 977 i ~ himself. He, therefore, could not be detained, nor served with A the order or grounds of detention in support of the order. WRIT PETITION ~

#5. The detenu, without submitting to the order of detention and surrendering, filed Writ Petition No. 372 of2006 in the High B Court of Bombay (Nagpur Bench) for an appropriate writ, direction or order quashing and setting aside the order of detention dated July 27, 2006 being illegal, unwarranted and vitiated by mala fide. Other reliefs were also sought. COUNTER AFFIDAVIT c D

#6. An affidavit in reply was filed by the Detaining Authority, inter atia, contending _that the petition filed by the detenu was not maintainable at law. The detenu got the information about the order of detention, absconded himself and the order of detention could not be served upon him. The order was, therefore, affixed at a conspicuous place at the res-idence of the detenu on July 30, 2006 and a panchanama was drawn by the Police Inspector of Sakkardara Police Station, Nagpur. Since the detenu was not available, grounds of detention along with relevant documents also could not be served upon him. It was stated that the order of detention was approved by the State Government. Moreover, the entire proceedings of detention were submitted to the Advisory Board constituted under Section 10 of the Act as required by law. The Government decided the period of detention only after the opinion of the Advisory Board F under Section 12 of the Act. E

#7. On merits, it was contended on behalf of the Detaining Authority that the detenu was indulging in black marketing of kerosene oil which was an 'essential commodity' and several cases had been registered against him. It was also stated that the detenu had executed a bond under the Code of Criminal Procedure, 1973 for good behaviour. In spite of all these steps, the detenu continued to indulge in black marketing activities of essential commodity and the Detaining Authority was satisfied G H • ~ 4 "<: ~ ( 978 SUPREME COURT REPORTS [2008] 3 S.C.R. A that "with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of essential commodities to the community'', it was necessary to detain him and accordingly the order was passed. It was, therefore, submitted that the petition was liable to be dismissed, particularly B when the detenu absconded and the order of detention along with grounds of detention and other documents could not be personally served and could not be executed. ,_ • + HIGH COURT JUDGMENT c D

#8. The High Court, by the impugned order, held that the detenu was not entitled to know the grounds on which the order of detention had been passed, unless he surrendered. The Court, however, proceeded to state that it perused the grounds of detention with a view to satisfy itself about the legality of the order of detention. The Court noted that the authorities made the record available to the Court and the Court had 'carefully' examined it. The Court then concluded; "We find that the present petition can be entertained at pre-execution stage". E F

#9. The High Court considered the relevant provisions of the Act as also the Maharashtra Kerosene Dealers' Licensing Order, 1966 and the Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993. It observed that if the cases instituted against the detenu were taken into consideration by the Detaining Authority, it could not be said that the Detaining Authority could not have reached 'subjective satisfaction' on that basis and as such the order could not be challenged. The High Court also conceded that normally, a Court would not interfere with the order of detention at pre-execution stage. It, however, G held that the present case was covered by one of the exceptions laid down in Addi. Secretary to the Government of India & Ors. v. Smt. Atka Subhash Gadia & Anr, 1992 Supp (1) SCC 496 and hence the petition was maintainable and the detenu was entitled to relief. The High Court accordingly set aside the order H of detention. The legality of said order is questioned by the • ~ ,.. ' • STATE OF MAHARASHTRA & ORS. v. BHAURAO PUNJABRAO GAWANDE [C.K. THAKKER, J.] 979 f t Authorities in the present appeal. PREVIOUS ORDERS A

#10. On February 12, 2007, when the matter was placed for admission hearing, notice was issued and was made returnable within three weeks. On August 13, 2007, four weeks B time was sought by the detenu for filing counter affidavit. The Court, however, passed the following order; t "The matter relates to grant of relief by the High Court under Article 226 of the Constitution at pre-arrest stage. This Court had issued notice on February 12, 2007. c On the facts and in the circumstances of the case, in our opinion, we should not grant four weeks' time as prayed for. Two weeks' time is granted, as a last chance, for filing counter affidavit. List thereafter".

#11. Affidavit-in-reply was thereafter filed. On December 13, 2007, the Registry was directed to list the matter for final hearing in the first week of February, 2008 on a non-miscellaneous day and that is how the matter is before us.

#12. We have heard learned counsel for the parties. APPELLANTS' SUBMISSIONS D E

#13. The learned counsel for the appellants strenuously F contended that the High Court was wholly in error in exercising jurisdiction under Article 226 of the Constitution against an order of detention at a pre-execution stage. It was submitted that the preliminary objection raised by the Detaining Authority was well founded that the High Court should not have entertained the writ G petition and set aside the order of detention before the order could be executed against the detenu. It was also submitted that an important factor which ought to have been taken into consideration by the High Court that the order could not be served upon the detenu, was a material factor. The detenu H .. .. , " ~ . 980 SUPREME COURT REPORTS [2008] 3 S.C.R. A absconded himself and successfully avoided service of order of detention, grounds of detention and relevant documents in support of the order. The authorities were, therefore, constrained to affix the order at a conspicuous place of residence of the detenu. The said factor was crucial and the High Court should B have refused to exercise jurisdiction in favour of the detenu.

#14. On merits, it was contended that several cases had been instituted against the detenu under the 1955 Act and consistent conduct of the detenu revealed that he continued to indulge in black marketing activities. If it is so, a preventive action c under the Act was called for and such action could not have been interfered with by the High Court. It was also submitted that the High Court was not right in observing that the detenu was ill-treated when he was arrested in connection with Crime No. 3022 of 2006 at Police Station, Wadi (Nagpur) and there D was 'custodial violence' by police authorities. But, even if it is assumed to be true, the detenu could have taken appropriate action in accordance with law. That, however, does not make order of detention vulnerable. The counsel also contended that the High Court was not right that no other steps had been E considered by the authorities. In fact, the detenu was directed to execute a bond of good behaviour and such bond was also executed by him. It was, therefore, submitted that the order passed by the High Court deserves to be set aside by allowing the Detaining Authority to execute the order of detention against the detenu and by granting liberty to the detenu to challenge the order by taking appropriate action in accordance with law against such detention. F RESPONDENT'S SUBMISSION

#15. Learned counsel for the respondent-detenu, on the other hand, supported the order of the High Court. He submitted that normally a High Court or this Court, in exercise of extraordinary powers under Article 226 or 32 of the Constitution does not interfere with an order of detention at pre-execution stage. But, there is no restriction, limitation or prohibition on the G H • .. ;. .. ' ,. , STATE OF MAHARASHTRA & ORS. v. BHAURAO PUNJABRAO GAWANDE [C.K. THAKKER, J.] 981 • >f power of the Court in exercising constitutional powers. It is a A self-imposed limitation by Courts themselves. In an appropriate case, however, if the Court is satisfied that the order is ex-facie illegal, void, without jurisdiction or actuated by mala fides, the Court has jurisdiction to grant relief to the detenu even if the order is not executed and th.e person is not served with such B order. In the case on hand, the learned counsel submitted, the ._ High Court was satisfied that one of the exceptions carved out by this Court in Atka Subhash Gadia had been made out and the Court exercised the power which cannot be said to be illegal or contrary to law. It was also submitted that when it was alleged C by the detenu that there was 'custodial violence' by police authorities, such complaint and the requisite materials should have been placed before the Detaining Authority and the Detaining Authority was bound to consider them. If no such material was placed before the authority or was placed but not considered by the Detaining Authority, there was non- application of mind on the part of the authority and it can be concluded that the order was passed for a 'wrong purpose' and was liable to be set aside. Finally, it was submitted that the order of detention was set aside by the High Court on October 17, 2006 and no allegation had been made by the appellants that subsequent to E the said order, the detenu has indulged in black-marketing activities. Hence, even if this Court is convinced that the High Court was not right in exercising jurisdiction at pre-execution stage, this Court may not interfere with the decision of the High Court. F 0 • .f , y WHETHER HIGH COURT WAS RIGHT IN QUASHING ORDER OF DETENTION?

#16. Having heard learned counsel for the parties and having given anxious consideration to the facts and circumstances of G the case, we are clearly of the view that the High Court exceeded its jurisdiction in entertaining the writ-petition and in quashing • ' and setting aside the order of detention at pre-execution stage. It cannot be gainsaid that the order of detention has been made against the detenu in exercise of power under the Act since the H 982 SUPREME COURT REPORTS [2008] 3 S.C.R. • A Detaining Authority was satisfied that detention of the writ-"' petitioner was necessary "with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities to the community" i.e. selling of kerosene in black market. True it is that such order must be 'preventive' and B not 'punitive' in nature. But the Court must be conscious and mindful that the satisfaction of the Detaining Authority is 'subjective' in nature and the Court cannot substitute its' 'objective' opinion for the subjective satisfaction of Detaining Authority for coming to the conclusion whether the activities of C the detenu were or were not prejudicial to the maintenance of supplies of essential commodities to the society. It would, therefore, be appropriate if we consider the concept of and relevant principles governing 'preventive detention'. PERSONAL LIBERTY : PRECIOUS RIGHT D

#17. There can be no doubt that personal liberty is a ~ • precious right. So did the Founding Fathers believe because, while their first object was to give unto the people a Constitution whereby a Government was established, their second object, equally important, was to protect the people against the E Government. That is why, while conferring extensive powers on the Government like the power to declare an emergency, the power to suspend the enforcement of Fundamental Rights or the power to issue Ordinances, they assured to the people a Bill of Rights by Part Ill of the Constitution, protecting against F executive and legislative despotism those human rights which they regarded as 'fundamental'. The imperative necessity to " protect those rights is a lesson taught by all history and all human experience. Our Constitution makers had lived through bitter years and seen an alien government trample upon human rights G which the country had fought hard to preserve. They believed like Jefferson that "an elective despotism was not the government we fought for." And therefore, while arming the Government with large powers to prevent anarchy from within ' and conquest from without, they took care to ensure that those H powers were not abused to mutilate the liberties of the people

#4. • STATE OF MAHARASHTRA & ORS. v. BHAURAO PUNJABRAO GAWANDE [C.K. THAKKER, J.] 983 •