Bombay High Court
Smt Manisha Sukhdev Gorde vs The State Of Maharashtra on 28 June, 2013
Author: G.S. Patel
Bench: A.S. Oka, G.S. Patel
WP1288-13-F.doc
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1288 OF 2013
Smt Manisha Sukhdev Gorde,
Indian Inhabitant, Age 30 Years,
residing at Shiv Leela, Complex,
"D" Wing, Room No. 101,
Kamothe, Navi Mumbai ...Petitioner
versus
1. The State of Maharashtra,
through the additional Chief
Secretary to the Government of
Maharashtra, Home
Department (Special),
Mantralaya, Mumbai 400 032
2. Medha Gadgil,
The Principal Secretary to the
Government of Maharashtra,
Mantralaya, Mumbai 400 032
3. The Commissioner of Customs
(Prev), M.& P. Wing, 2nd Floor,
Everest House, 100, Marine
Lines, Mumbai 400 032
4. The Superintendent of Prison,
Nasik Road Central Prison,
Nasik Road, Maharashtra ...Respondents
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AND
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1289 OF 20131.
Sher Khan, Indian Inhabitant, Age
38 years, residing at Reza Villa, Flat
No.32/33, IInd Floor, Nesbit Lane,
Mazgaon, Mumbai 400 010
ig ...Petitioner
versus
1. The State of Maharashtra,
through the additional Chief
Secretary to the Government of
Maharashtra, Home
Department (Special),
Mantralaya, Mumbai 400 032
2. Medha Gadgil,
The Principal Secretary to the
Government of Maharashtra,
Mantralaya, Mumbai 400 032
3. The Commissioner of Customs
(Prev), M.& P. Wing, 2nd Floor,
Everest House, 100, Marine
Lines, Mumbai 400 032
4. The Superintendent of Prison,
Nasik Road Central Prison,
Nasik Road, Maharashtra ...Respondents
________
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Mrs. Aisha Zubair Ansari for the Petitioners in both Petitions.
Mrs. A.S. Pai, APP, for the Respondent State in both Petitions.
________
CORAM : A.S. Oka, &
G.S. Patel, JJ.
DATE : 28th June 2013
ORAL JUDGMENT : (Per G.S. Patel, J.)
1. These two Habeas Corpus Writ Petitions are directed against orders dated 21st February 2013 issued by the 2nd Respondent, the detaining authority. In Writ Petition 1288 of 2013, the Petitioner is the wife of the detenu, one Sukhdev Gorde ("Gorde"). Writ Petition 1289 of 2013 is filed by a friend of the detenu in that Petition, one Jamshed Khan ("Khan"). As the facts and grounds of challenge in both Petitions are common, we thought it appropriate to decide both Petitions by a common order.
2. Red sander (or red sandalwood), a species of Pterocarpus santalinus, is native to the Indian sub-continent. It is much in demand in certain overseas markets, particularly for some of its extracts. Its export from India being banned, it presents a lucrative market for smugglers.
3. In substance, the detaining authority's factual narrative 3 of 22 ::: Downloaded on - 27/08/2013 21:01:35 ::: WP1288-13-F.doc runs thus: The Jawaharlal Nehru Port at Nhava Sheva, across the harbour from Mumbai, is a major port that handles a high volume of shipping containers. Some time before April 2012, the Customs and JNPT authorities had specific intelligence information that, around 28th April 2012, a criminal syndicate was likely to attempt smuggling red sanders out of JNPT in Container No. ESPU 202611, destined for Dubai. The contraband was, it was learned, sought to be exported as 'factory stuffed goods'.
4. At JNPT, officers kept watch. They located the container mounted on a trailer truck, Registration No: MH-04-CA-2224. This was one in a queue of trucks loaded with containers due for export through JNPT's NSICT Terminal (now known as DP World). On a preliminary enquiry, Gorde and two others --
one of whom was the trailer truck driver -- allegedly admitted there were red sanders in the container. The trailer truck was pulled from the queue and diverted to the Speedy CFS for examination. There, it was found to be carrying 15455 kgs of red sanders of the approximate value of Rs.1.50 crores. The red sander logs and the trailer truck were seized and placed in the custody of the Manager of the Speedy CFS. On questioning, Gorde is said to have produced certain documents (an invoice, a check list and a container release order), and to have admitted that these were forged. Gorde is alleged to have claimed that he had been approached by one Narendra Bhange to arrange the 4 of 22 ::: Downloaded on - 27/08/2013 21:01:35 ::: WP1288-13-F.doc transportation and clearance through Customs of this contraband cargo. Bhange was apprehended, as was his friend, Jamshed Khan, for whose release Writ Petition 1289 of 2013 has been filed.
5. Gorde and Khan were both arrested on 1st May 2012 and released on bail the next day, 2nd May 2012. Gorde's statements were recorded on 30th April 2012, 1st May 2012, 11th May 2012 and 5th July 2012; Khan's statements on 1st May 2012 and 14th May 2012. The detention orders, 1 both under Section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 ("COFEPOSA"), were issued by the 2nd Respondent only some nine months later, on 21st February 2013. This delay is one of the principal grounds of challenge to that order, a matter we will consider presently.
6. It seems that Gorde and Khan are two of five detenus, all said to be involved in the same smuggling operation. While petitions in regard to the other three detenus are not before us, this aspect assumes some importance in view of the submission of Mrs Ansari, Learned Advocate for the Petitioners, that it remains unclear if the Sponsoring Authority (the Commissioner of Customs, the 3rd Respondent) had mooted all 1 No. PSA/1212/CR-77(1)/SPL-3(A) against Gorde, and No.PSA/1212/CR-77(3)/SPL-3(A) against Khan 5 of 22 ::: Downloaded on - 27/08/2013 21:01:35 ::: WP1288-13-F.doc five proposal simultaneously, and, if so, whether the 2nd Respondent could be said to have actually applied her mind to each case on its own factual foundations, or whether she merely issued the various detention orders in a rote manner.
7. We are not, in these Habeas Corpus petitions, concerned with the minutiae of the ensuing investigations and enquiries, set out at some length in the grounds of detention. Our attention must remain on the process by which the 2nd Respondent arrived at her subjective satisfaction as to those grounds. Gorde and Khan were both served with their respective orders of detention on 21st February 2013. Both detention orders are of that date. On the same day, both detenus were also served with the grounds of detention in their respective cases, as well as a list of documents each (also of the same date). These document lists contained the many statements and documents said to have been placed before the detaining authority, the 2nd Respondent, and on which she is said to have relied while issuing the impugned detention orders.
8. Mrs. Ansari founds her challenge to the detention orders on two principal grounds. The first of these is that there is an inordinate delay of about nine months in issuing the detention orders. This delay is insufficiently explained. Between the time of their release on bail on 2nd May 2012, and the service of the detention order on 21st February 2013, neither detenu had been 6 of 22 ::: Downloaded on - 27/08/2013 21:01:35 ::: WP1288-13-F.doc noticed adversely by Marine and Preventive officers, or any other authority. The "live link" was therefore snapped, and the credible chain, if any, broken. The second ground is that, from the list of documents sent by the 2nd Respondent to the detenus, it appears that the grounds of detention were formulated on the basis of some 581 pages of material, not all gathered together. It is, Mrs Ansari argues, not known how long the 2nd Respondent took to scan and consider all the material;
when the documents were received; whether additional documents were received; when the grounds of detention were formulated; whether 2nd Respondent herself scanned all the material; if additional documents were in fact received, whether the 2nd Respondent had rescinded grounds, if any, earlier formulated; and whether the 2nd Respondent considered the documents piecemeal, which would be impermissible, or only considered all documents together.
9. In paragraph 4 of her Affidavits in Reply to the Petitions, the 2nd Respondent answers the ground of delay, thus:
"4. With reference to para 5(i) of the petition, it is stated that the proposal for detention of the detenu was received from the Sponsoring Authority on 22.10.2012. After scrutiny the concerned Assistant submitted the said proposal on 30.10.2012. The Section Officer endorsed on 31.10.2012. The Under Secretary endorsed it on 1.11.2012. The Deputy Secretary endorsed it on 1.11.2012. On 1.11.2012 when the papers were placed before me, I perused the papers and called for additional information from the Sponsoring Authority along with further generated documents. The Sponsoring Authority forwarded the additional information and further generated documents vide letter dated 27.11.2012. The 7 of 22 ::: Downloaded on - 27/08/2013 21:01:35 ::: WP1288-13-F.doc Concerned Assistant submitted on 30.11.2012. The Desk officer endorsed it on 1.12.2012. The Under Secretary endorsed it on 3.12.2012. The deputy Secretary endorsed it on 4.12.2012. On 5.12.2012 I as the Detaining Authority directed to include the further generated documents in relied upon documents. The Nagpur Assembly Session was from 10.12.2012 to 21.12.2012. I say that I as Detaining Authority was on leave from 17.12.2012 to 29.12.2012. It is stated that on the following dates there were holidays i.e. on 2.12.2012, 8.12.2012, 9.12.2012, 16.12.2012, 30.12.2012, 12.1.2013, 13.1.2013, 25.1.2013, 26.1.2013, 27.1.2013, 3.2.2013, 9.2.2013, 10.2.2013, 17.2.2013 and 19.2.2013.
Hence, it is denied that the impugned Order of Detention is belatedly and leisurely issued on 21.2.2013 i.e. after lapse of 9 months from the investigation in the matter and after the detenu was granted bail. It is denied that there is inordinate and inexcusable delay of 9 months in issuing the Order of Detention against the detenu. ..."
10. We find this explanation far from satisfactory. To begin with, there is initial delay of about six months from 2nd May 2012, when the detenus were granted bail, to 22nd October 2012, when the detaining authority received the sponsoring authority's proposal. There is not even an attempt to explain this delay. What also emerges is that there is no material at all to show that in the six-month period from 2nd May 2012 to 22nd October 2012, no Marine or Preventive officer, nor any other authority, took any adverse notice of the detenu. There was no apprehension noted during that period of either detenu engaging or being imminently likely to engage in any act covered by COFEPOSA. No application was made for cancellation of either detenu's bail or for their arrest in the interregnum. It is true that the detaining authority cannot be 8 of 22 ::: Downloaded on - 27/08/2013 21:01:35 ::: WP1288-13-F.doc said to have unconscionably delayed matters in calling for further documents and including them in the list of documents relied on, a period that ends on 5th December 2012, but what follows in the explanation is far less satisfactory. Another 11 days are explained as having been lost due to the Nagpur Assembly session, and yet another 15 due to various holidays. While the assistant concerned, the Under Secretary and the Deputy Secretary all seem to have discharged their respective functions promptly, this cannot be said of the Detaining Authority or the Sponsoring Authority.
11. Mere delay in issuing the detention order is not necessarily fatal. If the delay is not unreasonable or unconscionable, and has been satisfactorily explained, the detention order will be upheld.2 But where there is an inordinate delay and the explanation is unsatisfactory, a detention order cannot be sustained.3
12. Imminence is essential to the issuance and service of a detention order. Imminence does not mean immediacy. It speaks to the perception, or subjective satisfaction, of the detaining authority that unless the person in question is detained in the near future, there is a strong likelihood of his involvement in a criminal activity under the governing law. In 2 Hemlata Kantilal Shah v State of Maharashtra, AIR 1982 SC 8 3 Saeed Zakir Hussain Malik v State of Maharashtra, (2012) 8 SCC 233; A. Mohammed Farook v Government of India, (2000) 2 SCC 360.
9 of 22 ::: Downloaded on - 27/08/2013 21:01:35 ::: WP1288-13-F.doc plain language, imminence is "the quality or condition of something about to occur". It therefore postulates a temporal proximity between the Sponsoring Authority's proposal, the formulation of grounds by the Detaining Authority based on his or her subjective satisfaction, and the service of that detention order. Rajender Singh Pathania v State (NCT of Delhi) 4 arose out of proceedings under Sections 107/151 of the Code of Criminal Procedure, 1973. In paragraph 17 of its decision, the Supreme Court said:
"17. The object of the Sections 107/151 Cr.P.C. are of preventive justice and not punitive. S.151 should only be invoked when there is imminent danger to peace or likelihood of breach of peace under Section 107 Cr.P.C. An arrest under S.151 can be supported when the person to be arrested designs to commit a cognizable offence. If a proceeding under Sections 107/151 appears to be absolutely necessary to deal with the threatened apprehension of breach of peace, it is incumbent upon the authority concerned to take prompt action. The jurisdiction vested in a Magistrate to act under Section 107 is to be exercised in emergent situation."
13. These principles must inform all orders of preventive detention. Expedition, despatch, urgency and the apprehension of imminent danger on the part of the authorities are clearly the sine-qua-non of preventive detention. If a person is to be deprived of his liberty for an anticipated crime, then action must be taken swiftly, not in a leisurely manner. Mrs. Ansari is, in our view, therefore right in her assertion that the inordinate 4 (2011) 13 SCC 329 10 of 22 ::: Downloaded on - 27/08/2013 21:01:35 ::: WP1288-13-F.doc delay, wanting a satisfactory explanation, had "snapped the live link between the alleged prejudicial activity and the proposed preventive detention".5
14. The second broad submission canvassed by Mrs. Ansari relates to the documentary and factual material on which the detaining authority arrived at a subjective opinion for formulating her grounds for detention. It is not in dispute that there was a large volume of documentation, running into some 581 pages. Paragraph 4 of the 2nd Respondent's Affidavits in Reply in both Petitions discloses that when the proposal papers were placed before the 2nd Respondent on 1st November 2012, the 2nd Respondent perused these and called for additional information from the Sponsoring Authority, along with 'further generated documents'. This information and these documents were forwarded on 27th November 2012 and, after being submitted by the assistant concerned on 30th November 2012, endorsed by the Desk Officer on 1st December 2012, the Under Secretary on 3rd December 2012 and the Deputy Secretary on 4th December 2012, were placed before the 2nd Respondent on 5th December 2012. At this point, the Affidavits in Reply state only that the 2nd Respondent directed that the additional documents be included in the compilation of "relied-upon"
documents. There is then a quietus in the explanation as to what the 2nd Respondent did with this material; the Affidavits 5 Sunil Baburao Shirsat v Satish Sahney, (1996) 2 Mah LJ 765 11 of 22 ::: Downloaded on - 27/08/2013 21:01:35 ::: WP1288-13-F.doc in Reply only list the dates between 10th December 2012 and 19th February 2013 when the Legislative Assembly was in session in Nagpur and the 15 holidays. When were the grounds of detention finalized? Did the 2nd Respondent scan the entire material herself? Did she do this all together or in a piecemeal manner? Did the 2nd Respondent first formulate some grounds of detention and then rescind these on receipt of the additional material? These are the questions raised in the Petitions.
15. In response, Mrs. Pai, Learned APP appearing for the Respondents, drew our attention to paragraph 5 of the Affidavit in Reply. She contended that it is not incumbent on the Detaining Authority to provide every minute detail as "when the grounds of detention were finalized" and "further when the Order of Detention was ultimately issued". At a general level, we believe Mrs. Pai's submission is correct; no law or principle demands that degree of exactitude. But the point Mrs. Ansari advances is somewhat different. She asks whether, having regard to the fact that additional information and documents were called for, these were considered together or in a piecemeal manner, or whether, as a matter of fact, the 2nd Respondent formulated her grounds of detention twice: once before the receipt of additional information and documents and again at a later date after rescinding the first set of grounds. Mrs. Ansari's case is that in this situation, there is uncertainty as to whether all the material was before the 2nd Respondent 12 of 22 ::: Downloaded on - 27/08/2013 21:01:35 ::: WP1288-13-F.doc when the grounds of detention were formulated, and whether she herself read it all before arriving at her subjective satisfaction.
16. Mrs. Pai drew our attention to paragraph 6 of the Affidavits in Reply. Here, the 2nd Respondent states that she scanned all the documents and material herself and thereafter formulated the grounds of detention. Two sentences later comes this denial:
"6.
... I deny that after receiving the additional documents, I have rescinded the grounds of detention which were earlier formulated and had once again reconsidered the documents for issuing the Order of Detention against the detenu."
17. At best, this phrasing is infelicitous. It lends itself to multiple, conflicting interpretations. Does it mean that grounds of detention were in fact earlier formulated, but not rescinded on receipt of additional information and material, and that the additional documents were not reconsidered? Or does it mean, as Mrs. Pai would have it, that no grounds were earlier formulated, and that the material was considered only once, when all of it was received? Despite a great deal of careful scrutiny and lengthy arguments, we found ourselves unable to determine what exactly this sentence/denial intended to convey. We therefore requested Mrs. Pai for the office file pertaining to the matter. Mrs. Pai made it available to us 13 of 22 ::: Downloaded on - 27/08/2013 21:01:35 ::: WP1288-13-F.doc without hesitation.
A cursory scan of the file indicated that the proposal
18. dated 19th October 2012 was received from the Sponsoring Authority on 22nd October 2012. When the papers were finally placed before the Detaining Authority (the 2nd Respondent) on 1st November 2012, she called for further details and documents from the Sponsoring authority, setting out the reasons for this request. The additional documents and information requested were made available by the Sponsoring Authority sometime around 27th November 2012. On 5th December 2012 the 2nd Respondent directed that "these further generated documents" be included in the compilation of documents relied on by the detaining authority. There follows another note of 24th December 2012, which mentions that some documents are still not stamped, legible or otherwise unacceptable. As late as 28th January 2013 the documents requested were still awaited from the Sponsoring Authority. A reminder was sent. There is, on this reminder, an endorsement of about this time with the words "not to issue". This is not noted in the grounds of detention. When the additional documents were received in usable form is unclear. There is, therefore, an unacceptable lack of certainty in relation to these additional documents and materials.
19. There is yet another dimension to these matters. The 14 of 22 ::: Downloaded on - 27/08/2013 21:01:35 ::: WP1288-13-F.doc Petitioners have specifically averred that each of the detenus was served a Show Cause Notice dated 24 th September 2012 issued by the Commissioner of Customs (Export) under the Customs Act. This document is at Sr. No. 59 at pages 379 to 414 of the compilation of the documents relied upon by the Detaining Authority. Both Petitioners say that the detenus replied to their respective Show Cause Notices by their Advocate's letter dated 22nd October 2012. This reply does not form part of the compilation of documents. In paragraph 12 of her Affidavits-in-Reply, the 2nd Respondent admits that the reply to the Show Cause Notices was not placed before her and that she did not consider it before issuing the orders of detention; that there was sufficient other material to enable her to arrive at subjective satisfaction as to the detenus' prejudicial activities; and that she has seen the reply only as an annexure to these Petitions. The Sponsoring Authority, in its Affidavits in Reply, contends that the detenus' reply to the Show Cause Notices was sent only to the adjudicating authority, i.e., the Commissioner of Customs (Exports), JNPT, Nhava Sheva, Navi Mumbai and not to the Sponsoring Authority, and therefore was not placed before the detaining authority.
20. This only muddies already turbid waters. It is, for one thing, to be expected that the reply would be sent to the authority who issued the show-cause notices, viz., the Commissioner of Customs (Exports), JNPT, Nhava Sheva, 15 of 22 ::: Downloaded on - 27/08/2013 21:01:35 ::: WP1288-13-F.doc Navi Mumbai. The Sponsoring Authority is also from the same authority or agency, viz., Customs, and it is merely obfuscatory to suggest that the Commissioner of Customs (Exports) and the Sponsoring Authority operate in isolated spheres, insulated from each other. Even more peculiar is the fact that the replies are dated 22nd October 2012. That is the date on which the Sponsoring Authority's proposal, dated 19th October 2012, i.e., of a date three days prior to the detenus' Advocate's reply, was received at the Detaining Authority's office. This can only mean that show-cause notice was treated as an idle formality, and that the detention proposal had already been prepared and sent on its way without awaiting a response to the show-cause notices. Even this does not explain why the show-cause notice, when received, was not later placed before the Detaining Authority, given that she had called for additional documents and materials, and did not actually issue the detention order till several months later. Had the Detaining Authority studied the reply to the Show Cause Notices before formulating her grounds of detention, and not, as it is now contended, only after these Petitions were filed, she might well have reached a wholly different conclusion. Mrs. Ansari is therefore justified in saying that the reply to the show-cause notice is a vital document, one that ought to have been considered by the 2nd Respondent before arriving at her subjective satisfaction and formulation of the grounds of detention. To put it differently: since the Detaining Authority considered the show-cause notice, it is 16 of 22 ::: Downloaded on - 27/08/2013 21:01:35 ::: WP1288-13-F.doc reasonable to say that a consideration of the reply to that notice might well have affected her subjective satisfaction. There is no cogent reason at all why this reply was not considered and does not form part of the compilation of documents relied on by the 2nd Respondent.
21. We are of the view that the questions raised by Mrs. Ansari, the learned counsel appearing for the Petitioners, are not satisfactorily explained even after the perusal of the file itself. It is unclear when, and, indeed whether at all, a complete set of legible, properly stamped, usable documents were placed before the 2nd Respondent; and whether the documents earlier said to be missing were in fact furnished. Therefore, when (even approximately) the 2nd Respondent could have formulated her grounds for detention, and on what factual basis or material, remains unclear. The entire process followed by the 2nd Respondent seems disjointed and lacking in a proper application of mind. We fail to understand, for instance, how it can ever be contended that it was unnecessary to disclose whether all documents had been received and when; or to suggest that a document as crucial to a show-cause notice is irrelevant, especially when the show-cause notice itself has been taken into account, and that a reply was indeed sent is not in dispute.
22. Did the 2nd Respondent consider the material before her 17 of 22 ::: Downloaded on - 27/08/2013 21:01:35 ::: WP1288-13-F.doc in a piecemeal fashion? We do not know. Neither the Affidavits in Reply nor the file put this beyond doubt. As we have noted, the documents were not all received by the 2nd Respondent till as late as 28th January 2013. Between that date and 21st February 2013, the 2nd Respondent lists some five days as holidays. If, in fact, there was a piecemeal consideration, this is entirely unsustainable and, on its own, vitiates the detention order.6 Mrs. Ansari is correct in her submission that the law requires the detaining authority to apply his or her mind to the material before formulating the grounds for detention, and the record must reflect such an application of mind or, at any rate, must not show a non-application of mind.7 There must be an application of mind to "pertinent and proximate matters in regard to each individual case" and all "elements of arbitrariness and automatism" must be exscinded.8 It is, as the Supreme Court held in Rajesh Vashdev Adnani v State of Maharashtra,9 "absolutely essential for the 2nd Respondent herein to apply her mind not only at the time of grant of approval to the proposal for detention but also when the actual order of detention and grounds thereof are prepared."
6Rakesh Sherpalsingh Rana v State of Maharashtra, 2001 (1) Mh.L.J. 495, para 7; Ashwinkumar B. Malari v The State of Maharashtra & Ors, 1987 (3) Bom.C.R.11, para 2.
7Jai Singh v State of J&K, (1985) 1 SCC 561 8 Prakash Mehta v/s. Commissioner and Secretary, Government of Kerala and others, AIR 1986 SC 687 9 (2005) 8 SCC 390 18 of 22 ::: Downloaded on - 27/08/2013 21:01:35 ::: WP1288-13-F.doc
23. The law is well settled that the Detaining Authority must have regard to the entirety of material placed before him or her while arriving at a subjective satisfaction in formulating the grounds for detention. The reason suggests itself: it is entirely possible that on receiving and studying a Sponsoring Authority's proposal and relevant materials, a Detaining Authority may conclude that the proposed detention order is unjustified. The systemic safeguards are meant to prevent automatism and arbitrariness; and where there is a procedural failure, courts must step in.
24. There is, we find, substance in Mrs. Ansari's submissions. The delay in serving the detention order is both inordinate and insufficiently explained. The Affidavits in Reply of the 2nd and 3rd Respondents on the matter of the documents placed before and relied on by the 2nd Respondent are, at best, ambivalent. At least one crucial document was not placed before the Detaining Authority at all, and the reason given is less than compelling. There is, as we have noted, far too much uncertainty about the receipt of documents, their perusal before formulation of the grounds and their inclusion in the compilation. Both Petitions must, therefore, succeed for these reasons. Other grounds of challenge are raised in the Petitions but we do not think it necessary, in the view we have taken, to examine those.
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25. Often described as a "jurisdiction of suspicion", the law on preventive detention has always been much debated. Increasingly, it is seen as a necessity to the maintenance of orderliness in civil society, absent which other liberties would be meaningless. It is well settled that for this reason, the scope of judicial review in matters of preventive detention is limited. We cannot, in exercise of our jurisdiction under Article 226 of the Constitution of India, sit in appeal over the detention orders. We must only see if the detaining authority has complied with A.22(5); if it has, we cannot question the grounds of detention.10
26. Preventive detention laws like COFEPOSA have been held to serve a wide social objective,11 and we are mindful, too, of the gravity of the offences with which these two detenus are charged, and that red sanders smuggling now seems to be the handiwork of a criminal syndicate, as is evident from other cases recently before this court.12 But whatever be the social impetus of a preventive detention law, it cannot be wider than the constitutionally-mandated guarantee of the fundamental right to personal liberty under Article 21 of the Constitution.
10Jaswal, PS; "India--Judicial Review", in Preventive Detention and Security Law: A Commparative Survey, Andrew Harding, John Hatchard, ed., Martinus Nijhoff Publishers 11 Dropti Devi & Anr vs Union Of India & Ors, (2012) 2012 (7) SCC 499 12 Maya Ajit Satam v State of Maharashtra, 2012 114 (5) Bom.L.R. 2969; Sangita Deepak Jare v State of Maharashtra and Ors, 2012 All MR (Cri) 3190 20 of 22 ::: Downloaded on - 27/08/2013 21:01:35 ::: WP1288-13-F.doc Under our constitutional jurisprudence, Articles 21 and 22 together constitute an integrated code in matters relating to personal liberty and preventive detention.13 It follows, therefore, that any action that curbs that fundamental right must conform, and conform exactly, to the contours of A.22(5) and that is why courts so jealously protect the rights of the detenu -- not to undermine detention statutes or authorities acting under them, but to ensure, in the words of Cicero, that "we are all slaves of the law, that we may enjoy our freedom".
27. In the result, both Petitions succeed. In Writ Petition No 1288 of 2013, rule is made absolute in terms of prayer clause (a), which reads thus:
(a) That this Hon'ble Court be pleased to issue a Writ of Habeas Corpus or any other appropriate Writ, order or direction quashing and setting aside the the said order of detention bearing No.PSA-
1212/CR-77(1)/SPL-3(A) dated 21.2.2013 and be pleased to direct that the detenu Sukhdev Vithal Gorde be set at liberty.
In Writ Petition No 1289 of 2013, rule is made absolute in terms of prayer clause (a), which reads thus:
13Jaswal, PS; supra 21 of 22 ::: Downloaded on - 27/08/2013 21:01:35 ::: WP1288-13-F.doc
(b) That this Hon'ble Court be pleased to issue a Writ of Habeas Corpus or any other appropriate Writ, order or direction quashing and setting aside the the said order of detention bearing No.PSA-
1212/CR-77(3)/SPL-3(A) dated 21.2.2013 and be pleased to direct that the detenu Jamshed Khan be set at liberty.
28. Parties to bear their own costs.
(G.S. Patel, J.) (A.S.Oka, J.)
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