TMI Blog1979 (7) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... possibility of launching a prosecution before making an order of detention and that, if not, the order of detention must necessarily be held to be bad. - Criminal Appeal No. 193 of 1979 - - - Dated:- 23-7-1979 - REDDY, O. CHINNAPPA, SARKARIA, RANJIT SINGH AND SHINGAL, P.N., JJ. For the Appellant: P. H. Parekh and M. Mudgol. For the Respondent : N. M. Phadke, S. P. Nayyar and M. N. Shroff JUDGMENT CHINNAPPA REDDY, J.- Kanchanlal Maneklal Chokshi who is in preventive detention under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and whose petition for the issue of a writ of Habeas Corpus was rejected by the High Court of Gujarat is the appellant in this appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provisions of the Maintenance of Internal Security Act was in question. One of the contentions was that Section 3 of the Act offended Article 14 of the Constitution as it permitted the same offence to be a ground for detention in different and discriminatory ways . It was submitted that while A might be prosecuted but not detained preventively, might not be prosecuted but only detained preventively and C might be both prosecuted and detained preventively. Dealing with the contention, a Bench of five judges of this Court explained the basic distinction between preventive detention and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair 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 precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropped 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 to the Railway. 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 dropping the prosecution was unacceptable. It was observed that the 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 for no apparent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that recourse was had to preventive detention despite the fact that criminal prosecutions could well have been successfully launched, based as the case was on the evidence of members of the Railway Protection Force. The reason given by the State for taking recourse to preventive detention was found to be fantastic. The decision thus stands on the special facts of the case. In Dulal Roy v. The District Magistrate, Burdwan Ors., the Court had to consider a situation where a month after a person was arrested in connection with a criminal case he was discharged but was taken into custody on the same day pursuant to an order of detention. Krishna Iyer and Sarkaria, JJ ., while observing that as an abstract legal proposition an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrate, Burdwan Ors., (supra) We do not think that there is any such conflict as thought by the Division Bench of the Gujarat High Court. The principles emerging from a review of the above cases may be summarised in the following way: The ordinary criminal process is not to be circumvented or short-circuited by ready resort to preventive detention. But, the possibility of launching a criminal prosecution is not an absolute bar to an order of preventive detention. Nor is it correct to say that if such possibility is not present to the mind of the detaining authority the order of detention is necessarily bad. However, the failure of the detaining authority to consider the possibility of launching a criminal prosecution may, in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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