TMI Blog2003 (12) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... tention was without authority in law and, therefore, deserves to be nullified by issuance of a writ of mandamus/certiorari under Article 226 of the Constitution of India, 1950 (in short the Constitution ). By the impugned judgment dated 4.3.1997 the Patna High Court in Cr.W.J.C. No. 144 of 1997 repelled the contention. It was held that the Act itself provides the procedure as to how the matter should proceed if the person in respect of whom the order of detention is passed is detained. It was noted that he had a right to make representation and also to be heard before the Advisory Board constituted under the Act. The procedure indicated in the Act safeguards the rights available under Article 22 of the Constitution. Reference was made to the earlier writ petitions which were filed and it was noted that in the earlier writ petitions the challenges were on similar footings. Circumstances under which the order of detention could be quashed at the pre-detention stage were highlighted by this Court in Additional Secretary to the Government of India and Ors. v. Smt. Alka Subhash Gadia and Anr. (1992 Supp (1) SCC 496) and according to the High Court this was not a case where the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory tactics to deflect the course of justice. There is no doubt that personal liberty is sacrosanct and has to be protected, but a person who tries to draw red herrings to deflect the course of justice and tries to take advantage of his own wrongs has to be sternly dealt with. It is relevant to note that the appellant had filed the Crl.W.J.C. No. 702 of 1995 before the Patna High Court which was dismissed on 16.2.1996. He filed SLP (Crl.) No. 941 of 1996 before this Court which was withdrawn on 15.4.1996. The second writ petition Crl.W.J.C. 369 of 1996 was filed and the same was dismissed on 26.6.1996. The appellant was declared as absconder in terms of Section 16 of the Act by order dated 12.1.1997. Thereafter writ petition to which this case relates was filed on 21.2.1997 which came to be dismissed by the impugned judgment dated 4.3.1997. A preliminary objection has been raised by the respondent-State as noted above stating that the parameters for entertaining petition questioning legality of the order of detention before execution has been laid down in many cases, and the appellant has not made out a case for interference before execution of the detention order. Before dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law itself, with life, liberty and all those who are enjoying with us, thus absurdly sacrificing the end to the needs". This, no doubt, is the theoretical jurisdiction for the law enabling prevention detention. But the actual manner of administration of the law of preventive detention is of utmost importance. The law has to be justified by the genius of its administration so as to strike the right balance between individual liberty on the one hand and the needs of an orderly society on the other. The question whether the detenu or any one on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it has been examined by this Court on various occasions. One of the leading judgments on the subject is Smt. Alka Subhash s case (supra). In para 12 of the said judgment, it was observed by this Court as under: "12. This is not to say that the jurisdiction of the High Court and the Supreme Court under Articles 226 and 32 respectively has no role to play once the detention \026punitive or preventive- is shown to have been made under the law so made for the purpose. This is to point out the limitations, which the High Court and the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority has exceeded its power or jurisdiction or has failed or refused to exercise jurisdiction vested in it; or (c) where the authority has not applied its mind at all or has exercised its power dishonestly or for an improper purpose; (vi) where the Court cannot grant a final relief, the Court does not entertain petition only for giving interim relief. If the Court is of opinion, that there is no other convenient or efficacious remedy open to the petitioner, it will proceed to investigate the case on its merit and if the Court finds that there is an infringement of the petitioner s legal rights, it will grant final relief but will not dispose of the petition only by granting interim relief (vii) where the satisfaction of the authority is subjective, the Court intervenes when the authority has acted under the dictates of another body or when the conclusion is arrived at by the application of a wrong test or misconstruction of a statute or it is not based on material which is of a rationally probative value and relevant to the subject matter in respect of which the authority is to satisfy itself. If again the satisfaction is arrived at by taking into consideration material, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere at the pre-execution stage with the detention orders only after they are prima facie satisfied: (i) that the impugned order is not passed under the Act which it is purported to have been passed. (ii) that it is sought to be executed against a wrong person. (iii)that it is passed for a wrong purpose. (iv)that it is passed on vague, extraneous and irrelevant grounds, or (v)that the authority which passed it had no authority to do so. As we see it, the present case does not fall under any of the aforesaid five exceptions for the Court to interfere. It was contended that these exceptions are not exhaustive. We are unable to agree with this submission. Alka Subhash s case (supra) shows that it is only in these five types of instances that the Court may exercise its discretionary jurisdiction under Article 226 or Article 32 at the pre-execution stage. The appellant had sought to contend that the order which was passed was vague, extraneous and on irrelevant grounds but there is no material for making such an averment for the simple reason that the order of detention and the grounds on which the said order is passed has not been placed on record inasmuch as the order has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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