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NEUTRAL CITATION R/SCR.A/5574/2024 JUDGMENT DATED: 09/05/2024 undefined

37. In above view of the matter if the Court holds that the petition challenging the order of detention before the same is executed and served upon the detenu is maintainable it would be necessary to hold that such maintainabiiity is also subject to certain limitation. From the Constitutional scheme itself and in the very nature of things, there are certain inherent limitations which the Court must recognise. If these limitations are not recognised, some disastrous consequences may follow. While entertaining a petition under Art. 226 for mandamus against the order of detention which is not even executed, the Court cannot forget that the preventive detention laws also operate in the spheres of defence, foreign affairs, security of the nation and security of a State. If a detention order is passed against a person suspected to have been engaged in espionage and/or spying activities or against a person who is suspected to have been involved in disruptive and terrorist activities, and such an order of detention is challenged, by way of a petition under Art. 226, before it is executed, and if the Courts were to grant stay order in such petitions, would it not be that in a given case, the very existence of the nation may be put into danger ? If that be so, would it not be reasonable to say that in matters where detention order is challenged before it is executed stay orders be not granted by the Court even when the Court feels that the petition may be entertained and notice be issued against the executive authority? By recognising this limitation the Court is merely striking a balance between two conflicting interests which is basic to the constitutional scheme. The Court cannot also lose sight of the fact that law laid down in this respect can as well be availed of by a proposed detenu by filing a suit before the Court of a Civil Judge (S.D.) also. Obviously in such a suit the plaintiff would not pray for any relief in the nature of ?Habeas Corpus?. He may seek mere declaration regarding illegality and/or validity of detention order and pray for ex-parte interim order. If this becomes the law, will it be prudent and reasonable that the matters of grave concern which may endanger the safety and very existence of the nation be left to be considered at leisure while keeping a person, suspected to be ?potentially dangerous untouched by the NEUTRAL CITATION R/SCR.A/5574/2024 JUDGMENT DATED: 09/05/2024 undefined executive ? If this is permitted it may well be said that Court is exceeding its limits. Therefore, a restrained and cautious approach is absolutely necessary.