TMI Blog2001 (5) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... e was no consideration of several aspects, more particularly, the fact that the duty for the alleged evasion of which action was taken has already been paid. ( c )in some cases where payments have been made, the orders of detention passed have been revoked. ( d )there has no material to link the petitioner with illegal activities such as smuggling of goods. 2. A preliminary objection has been raised by the respondent stating that the certiorari for entertaining the petition questioning legality of the order of detention before execution has been laid down in many cases, and the petitioner has not made out a case for interference before execution of the detention order. 3. Before dealing with rival submissions, it would be appropriate to deal with the purpose and intent of preventive detention. Preventive detention is an anticipatory measure and does not relate to an offence, while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the executive is convinced that such detention is necessary in order to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 various Courts. One of the leading judgments on the subject is Additional Secretary to the Government of India v. Alka Subhash Gadia [1992] Suppl. (1) SCC 496. In para 12 of the said judgment, it was observed by the Apex Court as follows : "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 punitive 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 Supreme Court have to observe while exercising their respective jurisdiction in such cases. These limitations are normal and well known, and are self-imposed as a matter of prudence, propriety, policy and practice and are observed while dealing with cases under all laws. Though the Constitution does not place any restriction on these powers, the judicial decision have evolved them over a period of years taking into consideration the nature of the legislation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the petitioner, it will proceed to investigate the case on its merits 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, which the authority properly could not, or by omitting to consider matters, which it sought to have, the court interferes with the resultant order. In proper cases the Court also intervenes when some legal or fundamental right of the individual is seriously threatened, though not actually invaded." 5. The petitioner has stated that action under section 3(1) of the Act is permissible only when there is material to show about any smuggling of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Article 226 or Article 32 at the pre-execution stage. The petitioner 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 not yet been executed. The petitioner does not have a copy on the same, and therefore, it is not open to the petitioner to contend that the non-existent order was passed on vague, extraneous or on irrelevant grounds. Learned counsel for the petitioner could not show as to which of the enumerated categories present case falls. As indicated above, the plea about non-consideration of relevant materials does not bring the petitioner within the enumerated categories." 7. A recent decision of the Apex Court also throws considerable light as to what would be the proper course for a person to adopt when he seeks to challenge an order of detention on the available grounds like delayed execution of detention order, delay in consideration of the representation and the like. These questions are really technical n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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