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TMI Blog1979 (7) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court, while rejecting the petition, granted a certificate under Article 133(1) of the Constitution that the case involved a substantial question of law of general importance which needed to be decided by the Supreme Court. The substantial question of law so certified was 'whether it is necessary for the detaining authority to consider whether a person should be prosecuted before an order of detention is made against him'. The Division Bench of the Gujarat High Court in rejecting the particular contention of the appellant purported to follow an earlier decision of another Division Bench of the same Court in Ashok Murlidhar v. State of Gujarat. In that case Divan C. J., and Majumdar, J., though inclined to the view that the possibility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following upon conviction and observed: "The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his past conduct in the light of the surrounding circumstances". Clearly, the Court did not lay down that the possibility of a prosecution being launched was an irrelevant consideration, not to be borne in mind by the detaining authority. All that was laid down was that the mere circumstance that a detenu was liable to be prosecuted was not by itself a bar to the making of an order of preventive detention. It does not follow therefrom that failure to consider the possibility of a prosecution being launched cannot ever lead to the conclusion that the detaining authority never applied its mind and the order of detention was, therefore, bad. In Bhutnath Mate v. State of West Bengal Krishna Iyer and Sarkaria JJ., declared the detention illega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch for no apparent reason a person who could easily be prosecuted under the punitive law was being preventively detained. It is seen that the decision turned on the peculiar facts of the case and throws no light on the question presently raised before us. In Abdul Gaffer v. State of West Bengal the order of detention was passed on the basis of a few instances of theft of Railway property for which the detenu could well and easily have been prosecuted. The contention before the Court was that the order of detention was passed by the detaining authority mechanically without applying its mind to the question whether the facts disclosed the tendency of the petitioner to act prejudicially in the manner mentioned in the detention order. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition an order of preventive detention could be validly passed against a person in jail custody on the same facts on which he was being prosecuted for a substantive offence in a Court, pointed out that such an order of detention was readily vulnerable to the charge that the detaining authority was taking recourse to preventive detention in order to circumvent the penal law and the process of the Court. The learned Judges were satisfied that the discharge of the detenu in a criminal case was not due to any shortcoming in the evidence or difficulty in its production in Court. The order of detention was, therefore, quashed on the ground of non application of mind by the detaining authority. In Salim v. State of West Bengal, Chandrachud J., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the circumstances of a case, lead to the conclusion that the detaining authority had not applied its mind to the vital question whether it was necessary to make an order of preventive detention. Where an express allegation is made that the order of detention was issued in a mechanical fashion without keeping present to its mind the question whether it was necessary to make such an order when an ordinary criminal prosecution could well serve the purpose, the detaining authority must satisfy the Court that that question too was borne in mind before the order of detention was made. If the detaining authority fails to satisfy the Court that the detaining authority so bore the question in mind the Court would be justified in drawing the infer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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