Constitution except as authorised under the provisions of Articles 20, 21 & Ors. v. UNION OF INDIA that in a case where proposed detenu is absconding & Ors.

Judgment

[With Chelameswar, J. C concurring] o quashed and set aside and merely the

#1. It is essentially the sufficiency of materials relied upon for passing the order of detention which ought to weigh as to whether the order of detention was fit to be length of time and lil_>erty to challenge the same at the pre-execution stage which obviated the execution of the order of preventive detention cannot be the sole consideration for is fit to be quashed. When a holding that the same E proposed detenue is allowed to challenge the order of detention at the pre-execution stage on any ground whatsoever contending that the order of detention was legally unsustainable, the Court will have an occasion to examine all grounds except sufficiency of the material relied upon by the detaining authorities in passing the order of detention which legally is the most important aspect of i:he matter but cannot be gone into by the Court as it has been allowed to be challenged at the pre execution stage when the grounds of detention has not even been served on him. [Para 14] [652-C-F] F

#2. Thus, if it is held that howsoever the grounds of detention might be weighty and sustainable which persuaded the authorities to pass the order of detention, the same is fit to be quashed merely due to long lapse H of time specially when the detenue is allowed to 'G SUBHASH POPATLAL DAVE v. UNION OF INDIA · 599 . challenge the order of detention even before the order of A detention is served on him, he would clearly be offered with a double-edged weapon to use to his advantage circumventing the order of detention. On the one hand, he can challenge the order of detention at the pre execution stage on any ground, evade the detention in B the process and subsequently would be allowed to raise the plea of long pendency of the detention order which could not be served and finally seek its quashing on the plea that it has lost its live link with the order of detention. This would_ render the very purpose of preventive c detention laws as redundant and nugatory which cannot be permitted. On the contrary, if the. order of detention is allowed to be served on the proposed detenue even at a later stage, it would be open for the proposed detenue to confront the materials or sufficiency of the material relied upon by the authorities for passing the order of detention so as to contend that at the relevant time wheri the order of detention was passed, the same was based on non-existent or unsustainable grounds so as to quash the same. But to hold that the same is fit to be quashed merely because the same could not be executed for one reason or the other specially when the proposed detenue was evading the detention order and indulging in forum shopping, the laws of preventive detention would surely be reduced into a hollow piece of legislation which is surely not the purpose and object of the Act. [Para 15] [652-F-H; 653-A-D] E F 0

#3. Therefore, the order of detention is not fit to be quashed and should not be quashed merely due to long lapse of time but the grounds of detention ought to be G served on him once he gains knowledge that the order of detention is in existence so as to offer him a plank to challenge even the grounds of detention after which the courts will have to examine whether the order of detention which was passed at the relevant time but H 600 SUPREME COURT REPORTS (2013] 17 S.C.R. A could not be served was based on sufficient material justifying the order of detention .. [Para 16] [653-E-F]

#4. Since the order of detention can be challenged on· p' the Authority considering any ground beyond five conditions even at the pre- B execution stage, it is in the fitness of things that the materials relied upon by the authorities be served on the proposed detenues so as to be considered before the appropriate forum whether the order of detention was fit to be sustained or not at the relevant time. In the process what has been the activities of the proposed detenue C after the order of detention was passed against them so as to quash or sustain the same will have to be considered by representation or the Court examining its sustainability. If the detenues have not indulged in any illegal nefarious D activities giving rise to any economic offence, subsequently they have also not saddled with a fresh order of detention. But when the order of detention of a specific date relating to the relevant period is under adjudication, then the materials relied upon by the E authorities at the relevant time alone should weigh with the courts as to whether the order of detention was justified or was fit to be quashed. It is also not possible to lose sight of the fact that if the petitioners and the appellants had preferred not to challenge the order of F detention at the pre-execution stage or had not evaded arrest, the grounds of detention would have been served on them giving them a chance to challenge the same but if the petitioners and appellants have taken recourse to the legal remedy to challenge the order of detention even contend that it should be quashed because there is no live link between the existing/subsequent situation and the previous situation when the order of detention was passed overlooking that they s11cceeded in pre-empting the order by challenging it at the pre-execution stage it was executed, it is not open for them G before H" SUBHASH POPATLAL DAVE v. UNION OF INDIA 601 never allowing the matter to proceed so as to examine A the most crucial question whether there were sufficient material or grounds to pass the order of detention. Subsequent events or conduct in any view would be a' matter of consideration for the authorities before whom the representation is filed after the grounds are served B on- the detenue and cannot be gone into when the only question raised is regarding the correctness and legality of _the order of detention. [Para 18] [654-E-H; 655-A-F] ~

#5. The order of detention cannot be quashed and set aside merely due to long lapse of time on the specious plea that there is no live link between the order of detention and the subsequent situation. The order of detention is not fit to be quashed merely due to long lapse of time specially when the orders of detention tiave been allowed to be challenged even at the pre-execution stage D on any ground. It is, therefore, legally appropriate to serve the order of detention on the proposed detenues leaving it open to them to challenge the same after the grounds are served on them so as to appreciate whether there had been sufficient materials before the detaining E authorities to pass the orders of detention which were existing at the relevant time and approve or disapprove the same. In fact, there is no material before this Court even to arrive at a definite finding as to whether the proposed detenue have the passing of the order of detention nor it is· relevant in my view to take into account the subsequent events while considering the correctness of the order of detention passed at the relevant time. It would be equally hypothetical to observe that in case the orders of G detention were served and approved by the Advisory Board and the same were challenged before the appropriate court, whether it would have been open for. the appropriate court to consider the subsequent conduct of the proposed detenue in order to hold that the indulged in any activity after F 602 SUPREME COURT REPORTS [2013) 17 S.C.R. B also A order of detention was fit to be quashed. Nevertheless, when the duty is cast upon this Court at this stage merely to consider whether the order of detention could to be challenged on other grounds, than be allowed in Alka Subhash Gadia's case as what was delineated the fact whether the order of detention can be quashed on the ground of long lapse of time, it would that the order of not be legally appropriate to hold detention is fit to be quashed merely because there is no live link between the existing period and situation and the date on which the order of detention was passed. [Para 19] [655-G-H; 656-A-H; 657-A] C D

#6. It is deemed correct and legally appropriate to hold that the orders of detention are not fit to be quashed but the same are fit to be served on the petitioners/appellants leaving it open to them to challenge the order of detention by taking recourse to the remedies available to them under the law by way of an independent proceeding including a representation against the order of detention before the competent authority which is the next legal E stage after the order of detention is served on the proposed detenue. All the matters are consequently fit to be dismissed and are dismissed leaving it open to the Petitioners/Appellants to take recourse to remedies available to them in accordance with the provisions and F procedure established by law after the grounds of detention are served on them. [Para 20] [657-C-D, F] Sunil Fulchand Shah vs. Union of India (2000) 3 SCC 409: 2000 (1) SCR 945; G Sayed Taher Bawamiya vs. Govt. of India (2000) 8 sec 630 - overruled.