1990 (12) TMI 216 - SUPREME COURT

Whether the detenu or anyone on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it?

Held that:- In the present case, admittedly the proposed detenu is absconding and has been evading the service of the detention order. The first respondent who is his wife has sought to challenge the said order because the show-cause notice under sub-section (1) of Section 6 of the SAFEMA is issued to him, a copy of which is also sent to her. Thus, the assistance of the High Court under Article 226 of the Constitution is sought by the first respondent on behalf of the detenu to secure the order of detention with a view to defend the proceedings under the SAFEMA. Thus the proposed detenu is trying to secure the order of detention indirectly without submitting to it. What is further, he is also trying to secure the grounds of detention as well as the documents supporting them which he cannot get unless he submits to the order of detention. No prima facie case is made out either before the High Court or before us for challenging the order of detention which would impel the Court to interfere with it at this pre-execution stage. Unfortunately, the High Court disregarding the law on the subject and the long-settled principles on which alone it can interfere with the detention order at this stage has directed the authorities not only to furnish to the detenu the order of detention but also the grounds of detention and the documents relied upon for passing the detention order.

The appellants took the plea that although they were willing to produce the order of detention and the grounds of detention for the perusal of the Court, they cannot furnish them to the first respondent unless, as required by the Act, the detenu first submits to the impugned order. The High Court thereupon issued the contempt notice by its order dated June 30, 1989. For the reasons discussed above, we are of the view that both the orders of the High Court directing the appellants to furnish to the detenu or to the first respondent or her counsel the order of detention, the grounds of detention and the documents supporting them as well as the contempt notice of 30th June, 1989 are clearly illegal and unjustified and they are hereby quashed. Both the appeals are accordingly allowed.