TMI Blog2008 (11) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... aken by the learned counsels for the respondents that this petition should not be entertained because the petition has been filed at a pre-execution stage i.e. before the petitioner has surrendered or was arrested. Learned counsel for the respondents has relied on the decisions of this Court in State of Maharashtra vs. Bhaurao Punjabrao Gawande AIR 2008 SC 1705, which has followed the decision of this Court in Additional Secretary to the Government of India Ors. vs. Smt. Alka Subhash Gadia Anr. 1992 (Suppl.1) SCC 496, and the other decisions of this Court in Rajinder Arora vs. Union of India Ors. 2006 (4) SCC 796, Alpesh Navinchandra Shah vs. State of Maharashtra Ors. 2007 (2) SCC 777, etc. 4. We have carefully perused the aforesaid decisions and we are of the opinion that the legal position regarding the power of this Court or the High Court to set aside a preventive detention order at the pre execution stage needs to be further explained. 5. Since the aforesaid decisions have basically followed the decision of this Court in Additional Secretary to the Government of India Ors. vs. Smt. Alka Subhash Gadia Anr. (supra), it would be useful to refer to the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri Sibal for the appellants, as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period. Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision . 11. As held in Bharat Petroleum Corporation Ltd. another vs. N.R. Vairamani another (AIR 2004 SC 4778), a decision cannot be relied on without disclosing the factual situation. In the same judgment this Court also observed : Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes . (emphasis supplied) 12. In London Gravin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned senior counsel for the State of Maharashtra submitted that the five conditions mentioned in Smt. Alka Subhash Gadia's case (supra) were exhaustive and not illustrative. We cannot agree. As already stated above, a judgment is not a statute, and hence cannot be construed as such. In Smt. Alka Subhash Gadia's case (supra) this Court only wanted to lay down the principle that entertaining a petition against a preventive detention order at a pre- execution stage should be an exception and not the general rule. We entirely agree with that proposition. However, it would be an altogether different thing to say that the five grounds for entertaining such a petition at a pre execution stage mentioned in Smt. Alka Subhash Gadia's case (supra) are exhaustive. In our opinion they are illustrative and not exhaustive. 17. If a person against whom a prevention detention order has been passed can show to the Court that the said detention order is clearly illegal why should he be compelled to go to jail? To tell such a person that although such a detention order is illegal he must yet go to jail though he will be released later is a meaningless and futile exercise. 18. It must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Hence in our opinion Smt. Alka Subhash Gadia's case (supra) cannot be construed to mean that the five grounds mentioned therein for quashing the detention order at the pre execution stage are exhaustive. 25. In Francis Coralie Mullin vs. Union territory of Delhi AIR 1981 SC 746 this Court observed (vide para 3) : ....the power of preventive detention is a frightful and awesome power with drastic consequences affecting personal liberty, which is the most cherished and prized possession of man in a civilized society. It is a power to be exercised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused. 26. In Francis Coralie Mullin vs. W.C. Khambra and others AIR 1980 SC 849 this Court observed (vide para 5) : No freedom is higher than personal freedom and no duty higher than to maintain it unimpaired 27. Apart from the above, in our opinion non-placement of the relevant materials before the Detaining Authority vitiates the detention order, and grounds (iii) (iv) of the decision of this Court in Alka Subhash Gadia's case (supra) are attracted in such a situation as held in Rajinder Aror ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all history and all human experience. Our founding fathers have lived through bitter years of the freedom struggle and seen an alien government trample upon the human rights of our citizens. It is for this reason that they introduced Article 21 in the Constitution and provided for the writs of habeas corpus, etc. 30. In R vs. Secretary of State for Home Affairs; ex parte O'Brien (1923) 2 KB 361 : 1923 AC 603 : 92 LJKB 797, Scrutton, LJ observed: The law in the country has been very zealous of any infringement of personal liberty. This case is not to be exercised less vigilantly, because the subject whose liberty is in question may not be particularly meritorious. It is indeed one test of belief in principles if you apply them to cases with which you have no sympathy at all. You really believe in freedom of speech if you are willing to allow it to men whose opinion seem to you wrong and even dangerous; and the subject is entitled only to be deprived of his liberty by due process of law, although that due process if taken will probably send him to prison. A man undoubtedly guilty of murder must yet be released if due forms of law have not been followed in his conviction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel for the petitioner, but in our opinion it is not necessary to go into all of them since we are inclined to allow this petition on one of these grounds namely, that the relevant material was not placed before the Detaining Authority when he passed the detention order. 35. These relevant materials have been stated in the writ petition in ground `C' entitled `Non-placement of relevant material documents by Sponsoring Authority leading to consequent non- consideration thereof by the Detaining Authority'. 36. A large number of documents have been referred therein, but we agree with Mr. Shekhar Nafade, learned counsel for the respondent that it is not necessary for the Detaining Authority to consider or refer to the materials which were irrelevant to the activities mentioned in Section 3(1) of the Act. However, we agree with Shri Soli Sorabjee that some of the materials were relevant and should have been placed before the Detaining Authority and considered by him, but they were neither placed before the Detaining Authority nor were they considered. 37. The most important of these documents which were not placed before the Detaining Authority were the retra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, 1977 and, therefore, it was obligatory upon the Customs Officers to report the retraction of those statements by the detenu on December 22, 1977 to the detaining authority, for, it cannot be disputed that the fact of retraction would have its own impact one way or the other on the detaining authority before making up its mind whether or not to issue the impugned order of detention. Questions whether the confessional statements recorded on December 13 and 14, 1977 were voluntary statements or were statements which were obtained from the detenu under duress or whether the subsequent retraction of those statements by the detenu on December 22, 1977 was in the nature of an after-thought, were primarily for the detaining authority to consider before deciding to issue the impugned detention order but since admittedly the aforesaid vital facts which would have influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority it must be held that there was non-application of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority thereby rendering the impugned detenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inly vitiate the impugned detention order. 47. Shri Soli Sorabjee, learned counsel for the petitioner also submitted that the petitioner had stopped his alleged illegal activities in 2006 and hence the detention of the petitioner now would be illegal. He has relied on a decision of this Court in Maqsood Yusuf Merchant vs. Union of India and another Criminal Apeal No. 1337 of 2008 decided on 22.8.2008 by this Bench. In that decision it was observed that the activities of the accused who was said to have indulged in unlawful activities were of the year as far back as 2002, and thereafter the appellant had not indulged in similar activities. Hence it was held that continuing the order of detention today would be an exercise of futility and the same should not be given effect to any further. 48. Shri Soli Sorabjee also relied on a decision of this Court in Alpesh Navinchandra Shah vs. State of Maharashtra and others 2007(2) SCC 777(vide para 57) etc. 49. Shri Soli Sorabjee, learned counsel, invited our attention to ground `B' in the Writ Petition in which it has been stated that the petitioner has not done any business after November 2006 when the alleged last consignment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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