Supreme Court of India
REKHAversusSTATE OF T NADU TR.SEC.TO GOVT. & ANR.
- Citation
- 2011 INSC 267
- Decided
- 5 April 2011
- Disposal
- Appeal(s) allowed
- Bench
- MARKANDEY KATJU
Holding
The detention order under the Tamil Nadu Prevention of Dangerous Activities Act, 1982 was illegal and was quashed because the grounds were unsupported and ordinary criminal law was sufficient to deal with the alleged conduct.
Summary
Rekha, the wife of a man accused of selling expired drugs with tampered labels, challenged his preventive detention order under the Tamil Nadu Prevention of Dangerous Activities Act, 1982. The High Court dismissed her habeas corpus petition, but the Supreme Court allowed the appeal, holding that the detention order was illegal. The Court found that the grounds relied on an unsubstantiated claim that the detainee might obtain bail, without any details of similar cases, amounted to ipse dixit and violated procedural safeguards. It further held that ordinary criminal statutes (the Indian Penal Code and the Drugs and Cosmetics Act) were sufficient to address the alleged offence, making recourse to preventive detention unnecessary and unlawful. Consequently, the detention order was quashed and the detainee ordered to be released, without affecting pending criminal prosecutions.
Issues considered
- The validity of a preventive detention order when ordinary criminal law can address the alleged offence.
- Whether the grounds of detention, based solely on a speculative likelihood of bail without specific details, satisfy the procedural requirements of preventive detention statutes.
- The interpretation of Article 22(3)(b) of the Constitution as an exception to Article 21 and its permissible scope.
- Whether a detention order can be sustained in the absence of a pending bail application and without concrete material indicating a real risk of release.
- The necessity of detailed factual basis for the detaining authority's subjective satisfaction in preventive detention cases.
Legislation cited
Subjects
preventive detentionArticle 21Article 22libertybailipse dixitprocedural safeguardscriminal law vs preventive lawdrug offensesconstitutional law
Judgment
(2011] 4 S.C.R. 740 •
A REKHA
v.
STATE OF T NADU TR.SEC.TO GOVT. & ANR.
(Criminal Appeal No. 755 of 2011)
APRIL 05, 2011
B
[MARKANDEY KATJU, SURINDER SINGH NIJJAR AND
GYAN SUDHA MISRA, JJ.]
Tamil Nadu Prevention of Dangerous Activities of
c Bootleggers, Drug-Offenders, Forest Offenders, Goondas,
Immoral Traffic Offenders, Sand Offenders, and Slum
Grabbers and Video Pirates Act, 1982 - Charge against
appellant's husband that he was selling expired drugs after
changing their labels - Detention order under the 1982 Act -
0 Writ petition challenging the detention order dismissed by
High Cowt - On appeal, held: In the grounds of the detention
it was only stated that in similar cases bails were granted by
the courts and no details. were given about the alleged bail
order in similar cases - Detention order only contained ipse
E dixit regarding the alleged imminent possibility of the accused
coming out on bail and there was no reliable material to this
effect - Also, the relevant provisions in the Penal Code and
the Drugs and Cosmetics Act were sufficient to deal with the
said situation - Thus, the detention order was illegal and
F cannot be sustained, and is quashed.
Preventive detention law - Order under -Legality of -
When ordinary law of the land such as Penal Code and other
penal statutes, can deal with the situation - Held: In such a
case, recourse to preventive detention law would be illegal.
G
Constitution of India, 1950-Artic/e 22(3)(b) - Preventive
detention - Power of - Held: Must be confined to very naffow
limits, otherwise the right to liberty would become nugatory -
H 740
• REKHA v. STATE OF T NADU TR.SEC.TO GOVT. & 741
ANR.
Article 22(3}(b) cannot be read in isolation, but must be read A
along with Articles 19 and 21.
It is alleged that the appellant's husband was selling
expired drugs after tampering with the labels and printing
fresh labels showing them as non-expired drugs. He was
8
detained by a detention order passed under the Tamil
Nadu Prevention of Dangerous Activities of Bootleggers,
Drug-Offenders, Forest Offenders, Goondas, Immoral
Traffic Offenders, Sand Offenders, and Slum Grabbers
and Video Pirates Act, 1982. The appellant filed habeas C
corpus petition challenging the said detention order. The
High Court dismissed the ,petition. Therefore, the
appellant filed the instant appeals.
Allowing the appeals, the Court
D
HELD: 1.1 Article 22(3)(b) of the Constitution of India
. which permits preventive detention is only an exception
to Article 21 of the Constitution. An exception is an
exception, and cannot ordinarily nullify the full force of
the main rule, which is the right to liberty in Article 21 of E
the Constitution. Fundamental rights are meant for
protecting the civil liberties of the people, and not to put
them in jail for a long period without recourse to a lawyer
and without a trial. Thus, Article 22 cannot be read in
isolation but must be read as an exception to Article 21.
F
An exception can apply only in rare and exceptional
cases, and it cannot override the main rule. Article 21 is
the most important of the fundamental rights guaranteed
by the Constitution of India. Right to liberty guaranteed
by Article 21 implies that before a person is imprisoned
.
a trial must ordinarily be held giving him full opportunity
G
of hearing, and that too through a lawyer, because a
-1ayman would not be able to properly defend himself
except through a lawyer. [Paras 13, 14, 15 and 16] [753-
D-E; .753-G; 754-A-C-D]
H
742 SUPREME COURT REPORTS [2011] 4 S.C.R.
A AS. Mohd. Rafi vs. State of Tamilnadu AIR 2011 SC 308;
Md. Sukur Ali vs. State of Assam JT 2011 (2) SC 527 -
referred to. .
R vs. Secy. of State for the Home Dept., Ex Parle Stafford
B (1998) 1 WLR 503 (CA) Powell v. Alabama 287 U.S. 45
(1932) - referred to.
1.2. Article 22(1) of the Constitution makes it a
fundamental right of a person detained to consult and be
defended by a lawyer of his choice. But Article 22(3)
C specifically excludes the applicability of clause (1) of
Article 22 to cases of preventive detention. Therefore, the
power of preventive detention must be confined to very
narrow limits, otherwise the great right to liberty would
become nugatory. Article 22(3)(b) cannot be read in
D isolation, but must be read along with Articles 19 and 21.
[Paras 18 and 22] [754-F-G]
State of Maharashtra and Ors. vs. Bhaurao Punjabrao
Gawande (2008) 3 SCC 613; M. Nagaraj and Ors. vs. Union
E of India and Ors. (2006) 8 SCC 212; l.R. Coelho (dead) By
LRs. vs. State of T.N. (2007) 2 SCC 1 - referred to.
A. K. Roy vs. Union of India (1982) 1 SCC 271 -
followed.
F 1.3. In cases of preventive detention no offence is
proved and the justification of such detention Is
suspicion or reasonable probability, and there is no
conviction which can only be warranted by legal
evidence. Preventive detention is often described as a
G 'jurisdiction of suspicion'. The detaining authority passes
the order of detention on subjective satisfaction. Since
clause (3) of Article 22 specifically excludes the
applicability of clauses (1) and (2), the ~etenu is not
entitled to a lawyer or the right to be produced before a
H Magistrate within 24 hours of arrest. To prevent misuse
• REKHA v. STATE OFT NADU TR.SEC.TO GOVT. &
ANR.
743
of this potentially dangerous power the law of preventive A
detention has to be strictly construed and meticulous
compliance with the procedural safeguards, however,
technical, is, mandatory and vital. [Paras 39 and 40) [760-
D-G] .
State of Maharashtra & Ors. vs. Bhaurao Punjabrao
8
Gawande (2008) 3 SCC 613; Kamleshkumar lshwardas Patel
vs. Union of India and Ors. (1995) 4 SCC 51; Rattan Singh
vs. State of Punjab (1981) 4 SCC 1981; Abdul Latif Abdul
Wahab Sheikh vs. B.K. Jha and Anr. (1987) 2 SCC 22 -
referred to. C
Joint Anti-Fascist Refugee Committee vs. McGrath 341
US 123 - referred to.
1.4. Procedural rights are not based on sentimental
0
· concerns for the detenu. The procedural safeguards are
not devised to coddle criminals or provide technical
loopholes through which dangerous persons escape the
consequences of their acts. They are basically society's
assurances that the authorities will behave properly
within rules distilled from long centuries of concrete E
experiences. Personal liberty protected under Article 21
is so sacrosanct and so high in the scale of constitutional
values that it is the obligation of the detaining authority
to show that the impugned detention meticulously
accords with the procedure established by law. [Paras 45 F
and 46] [761-H; 762-A-C]
Thomas Pacham Dale's case (1881) 6 QBD 376 -
referred to.
G
2.1, There is a real possibility of release of a person
on bail who is already in custody provided he has moved
a bail application which is pending. It follows logically
that if no bail application is pending, then there is no
likelihood of the person in custody being released on bail, H
744 SUPREME COURT REPORTS [2011] 4 S.C.R.
A and thus, the detention order would be illegal. However,
there can be an exception to this Rule, that is, where a
co-accused whose case stands on the same footing had
been granted bail. In such cases, the detaining authority
can reasonably conclude that there is likelihood of the
8 detenu being released on bail even though no bail
application of his is pending, since most courts normally
grant bail on this ground. However, details of such
alleged similar cases must be given, otherwise the bald
statement of the authority cannot be believed. [Para 29]
C [757-G-H; 758-A-B]
2.2. In the instant case, a perusal of the grounds of
the detention shows that no details have been given
about the alleged similar cases in which bail was
allegedly granted by the concerned court. Neither the
D date of the alleged bail orders was mentioned, nor the bail
application number, nor whether the bail orders were
passed in respect of the co-accused on the same case,
nor whether the bail orders were passed in respect of ·
other co- accused in cases on the same footing as the
E case of the accused. All that was stated in the grounds
of detention is that 'in similar cases bails were granted
by the courts.' If details are given by the respondent
authority about the alleged bail orders in similar cases
mentioning the date of the orders, the bail application
F number, whether the bail order was passed in respect of
co-accused in the same case, and whether the case of
the co-accused was on the same footing as the case of
the petitioner, then, of course, it could be argued that
there is likelihood of the accused being released on bail,
G because it is the normal practice of most courts that if a
co-accused was granted bail and his case is on the same
footing as that of the petitioner, then the petitioner is
ordinarily granted bail. However, the respondent authority
should have given details about the alleged bail order in
H similar cases, which was not done in the instant case. The
• REKHA v. STATE OFT NADU TR.SEC.TO GOVT. & 745
ANR.
detention order only contains ipse dixit regarding the A
alleged imminent possibility of the accused coming out
on bail and there was no reliable material to this effect.
Thus, the detention order cannot be sustained. [Paras 6,
7, 10 and 11] [751-C-E; 752-D-H]
B
T. V. Sravanan alias S.A.R. Prasana Venkatachaariar
Chaturvedi vs. State through Secretary and Anr. (2006) 2 SCC
664; A. Shanthi (Smt.) vs. Govt. of T.N. and Ors. (2006) 9
sec 711; Rajesh Gulati VS. S. Govt. of NCT of Delhi and Anr.
{2002) 7 SCC 129; Haradhan Saha vs. State of West Bengal C
(1975) 3 SCC 198; A. Geetha vs. State of T.N. and Anr.
(2006) 7 SCC 603; Ibrahim Nazeer vs. State of T.N. and Anr.
(2006) 6 sec 64 - referred to.
2.3. There is nothing on the record to indicate
whether the detaining authority was aware of the fact that D
the bail application of the accused was pending on the
date when the detention order was passed. On the other
hand, in the grounds of detention it was mentioned that
'TR' is in remand in crime No. 13212010 and he has not
moved any bail application so far'. Thus, the detaining E
authority was not even aware whether a bail application
of the accused was pending when he passed the
detention order, rather the detaining authority passed the
detention order under the impression that no bail
application of the accused was pending but in similar F
cases bail had been granted by the courts. No details of
the alleged similar cases has been given. Thus, the
detention order cannot be sustained. It cannot be said
that an over technical view of the matter is taken and the
preventive detention orders passed in cases where G
serious crimes have been committed should not be
interfered with. [Paras 27 and 30] [757-C-E; 758-C]
Union of India vs. Paul Manickam and Anr. (2003) 8 SCC
342 - referred to.
H
746 SUPREME COURT REPORTS [2011] 4 S.C.R.
A 2.4. If the ordinary law of the land (Penal Code and
other penal statutes) can deal with a situation, recourse
to a preventive detention law would be illegal. Whenever
an order under a preventive detention law is challenged
one of tbe questions the court must ask in deciding its
B legality is: Was the ordinary law of the land sufficient to
deal with the situation? If the answer is in the affirmative,
the detention order would be illegal. In the instant case,
the charge against the,detenu was of selling expired
drugs after changing their labels. Surely the relevant
c provisions in the Penal Code and the Drugs and
Cosmetics Act were sufficient to deal with this situation.
Thus, the detention order was illegal. [Paras 31 and 32]
(758-D-G; 759-A]
Biram Chand vs. State of Uttar Pradesh and Anr. (1974)
D 4 SCC 573 - referred to.
2.5. The observation in Haradhan Saha's case cannot
be regarded as an unqualified statement that in every
case where a person is liable to be tried, or is actually
E being tried, for a crime in a criminal court, a detention
order can also be passed under a preventive detention
law. (Para 38] (760-C]
Haradhan Saha vs. State of West Bengal (1975) 3 SCC
198 - referred to.
F
2.6. The impugned order is set aside and the
Impugned detention order is quashed. However, it is
made clear that this would not affect the criminal cases
pending against the alleged accused. [Para 47] [762-E]
G
Case Law Reference:
(2006) 2 sec 664 Referred to. Para 8
(2006) 9 sec 111 Referred to. Para 8
H (2002) 1 sec 129 Referred to. Para 8
• REKHA v. STATE OF T NADU TR.SEC.TO GOVT. &
ANR.
747 .
(1975) 3 sec 198 Referred to. Para 9 A
(2006) 1 sec 603 Referred to. Para 9
(2006) 6 sec 64 Referred to. Para 9
(1998) 1 WLR 503 (CA) Referred to. Para 13
B
AIR 2011 SC 308 Referred to. Para 17
JT 2011 (2) SC 527 Referred to. Para 17
287 U.S. 45 (1932) Referred to. Para 17
c
(2008) 3 sec 613 Referred to. Para 19
(2006) 8 sec 212 Referred to. Para 20
(2001) 2 sec 1 Referred to. Para 21
(1982) 1 sec 21 ·Followed. Para 22 D
. (2003) 8 sec 342 . Referred to. Para 28
· (1974) 4 sec 573 Referred to. Para 33
(1995) 4 sec 51 Referred to. Para 41 E
(1981) 4 sec 1981 Referred to: Para 42
(1987) 2 sec 22 . Referred to. Para 43
341 us 123 Referred to. Para 44
F
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 755 of 2011.
From the Judgment & Order dated 23.12.2010 of the High
Court of Judicature at Madras in H:C.P. No. 792 of 2010: G
WITH.
· Crl.A.Nos. 756, 757, 759, 760, 762, 763 & .764 of 2011.
H
748 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A K.K. Mani, Abhishek Krishna, S.J. Aristotle, A. Rohen
Singh, Bob, Priya Aristotle, Prabhu Ramasubramanian, V.G.
Pragasam, V. Mohana, V. Parshant, G. Ananda Selvam,
Jaimon Andrews, A. Santha Kumaran, Ravindra Keshavrao
Adsure, Guru Krishna Kumar, Abhay Kumar, Akshat Hansaria,
B Mamta Chandal for the Appellant.
Altaf Ahmed, Promila, S. Thananjayan for the
Respondents.
The Judgment of the Court was delivered by
c
helddis Searched for dates from: 05/04/2011 to
MARKANDEY KATJU, J.
CRIMINAL APPEAL NO. 755 OF 2011
D
1. Heard learned counsel for the parties.
2. This Appeal has come up in a reference made by a two
Judge Bench of this Court by order dated 15.03.2011.
E 3. The detenu in this Appeal Ramakrishnan (whose wife
Rekha has filed this Appeal) has been detained by a detention
order dated 08.04.201 O passed under the Tamil Nadu
Prevention of Dangerous Activities of Bootleggers, Drug-
offenders, Forest Offenders, Goondas, Immoral Traffic
F Offenders, Sand Offenders, and Slum Grabbers and Video
Pirates Act, 1982, on the allegation that he was selling expired
drugs after tampering with the labels and printing fresh labels
showing them as non-expired drugs. The habeas corpus
petition filed by the wife of the detenu before the Madras High
G Court challenging the said detention order has been dismissed
by the impugned order dated 23.12.2010. Hence, this Appeal.
4. Several grounds have been raised before us, but, in our
opinion, this Appeal is liable to succeed on one ground itself,
H and hence we are not going into the other grounds.
• REKHA v. STATE OFT NADU TR.SEC.TO GOVT. & 749
ANR. [MARKANDEY KAT JU, J.]
The detention order reads as under :- A
"No. 199/2010 Dated 08.04.201 O
DETENTION ORDER
Whereas I, T. Rajendran, IPS., Commissioner of B
Police, Chennai Police, is satisfied that the person known
as Tr. Ramakrishnan, male aged 35, S/O Devaraj, No. 82-
8, South Mada Veethi, Villivakkam, Chennai-49 is a Drug
Offender as contemplated under Section 2(e) of the Tamil
Nadu Act 14 of 1982 and that with a view to preventing C
him from acting in any manner prejudicial to the
maintenance of public order, it is necessary to make the
following order.
Now therefore in exercise of the powers conferred D
on me by sub-section (1) of Section 3 of the Tamil Nadu
Prevention of Dangerous Activities of Bootleggers, Drug-
offenders, Forest Offenders, Goondas, Immoral Traffic
Offenders, Sand Offenders, and Slum Grabbers and Video
Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) read with
orders issued by the Government in G.q. (D) No. 6, Home, E
Prohibition and Excise (XVI) Department dated 18th
January, 2010 under sub- section (2) of Section 3 of the
said Act, I hereby direct that the said Drug Offender Tr.
Ramakrishnan, S/o Devaraj, be detained and kept in
custody at the Central Prison, Puzhal, Chennai. F
Given under my hand and seal of this office the 8th
day of April, 2010."
5. The relevant part of the grounds on which the said G
de.tention order has been made is as follows :-
"Thiru. Elango, M. Pharm, male aged 43, S/O Ramasamy
is working as a Drug Inspector, Drug Control Department,
Perambur Range, Zone-II, D.M.S. Complex, Teynampet,
Chennai-18. On 15.03.2010, Thiru. Elango appeared H
750 SUPREME COURT REPORTS [2011] 4 S.C.R.
A before the Inspector of Police, Crimes P-6 Kodungaiyur
Police Station and lodged a complaint against
Thiruvalargal, Prabhakar @ Ravi, 2) Venkatesan, 3)
Sanjay Kumar, 4) Sekar, 5) Baskar, 6) Pradeep Kumar
Chordia and 7) Meenakshi Sundaram.
B
In his complaint, he has stated that expired drugs
collected from the medical shops of Chennai city and
Suburban used to be dumped at dump yard of Corporation
ground at Ezhil Nagar, Kodungaiyur, Chennai. On
15.3.2010, Thiru, Elango received a secret information that
c expired drugs dumped at the dump yard at Corporation
ground, Ezhil Nagar, Kodungaiyur, Chennai, were taken by
Thiru. Prabhakar@ Ravi residing at the first floor of No.
A-6/541, 151 st Street, Muthamizh Nagar, Kodungaiyur,
Chennai and by keeping the same with his associates
D tampered the same tampering the original labels and
printing fresh labels to make it appear as though they are
not expired drugs and redistribute the same for sale to the
general public."
E In para 4 of the grounds of detention, it is stated :-
"4. I am aware that Thiru. Ramakrishnan, is in remand in
P.6, Kodungaiyur Police Station Crime No. 132/2010 and
he has not moved any bail application so far. The
sponsoring authority has stated that the relatives of Thiru.
F Ramakrishnan are taking action to take him on bail in the
above case by filing bail applications before the Higher
courts since in similar cases bails were granted by the
Courts after a lapse of time. Hence, there is real possibility
of his coming out on bail in the above case by filing a bail
G application before the higher courts. If he comes out on bail
he will indulge in further activities, which will be prejudicial
to the maintenance of public health and order. Further the
recourse to normal criminal law would not have the desired
effect of effectively preventing him from indulging in such
H activities, which are prejudicial to the maintenance of
• REKHA v. STATE OF T NADU TR.SEC.TO GOVT. & 751
ANR. [MARKA.NDEY KAT JU, J.]
public health and order. On the materials placed before A
me, I am fully satisfied that the said Thiru. Ramakrishnan
is also a Drug Offender and that there is a compelling
necessity to detain him in order to prevent him from
indulging in such further activities in future which are
prejudicial to the maintenance of public order under the B
provisions of Tamil Nadu Act 14 of 1.982."
6. A perusal of the above statement in para 4 of the
grounds of detention shows that no details have been given
about the alleged similar cases in which bail was allegedly C
granted by the concerned court. Neither the date of the alleged
bail orders has been mentioned therein, nor the bail application
number, nor whether the bail orders were passed in respect of
the co-accused on the same case, nor whether the bail orders
were passed in respect of other co-accused in cases on the
same footing as the case of the accused. All that has been D
stated in the grounds of detention is that "in similar cases bails
were granted by the courts". In our opinion, in the absence of
details this statement is mere ipse dixit, and ca~not be relied
upon.
E
7. In our opinion, this itself is sufficient to vitiate the
detention order.
8. It has been held in T.V. Sravanan alias S.A.R. Prasana
Venkatachaariar Chaturvedi Vs. State through Secretary and F
Anr., (2006) 2 SCC 664; A Shanthi (Smt.) Vs. Govt. of T.N.
and Ors., (2006) 9 SCC 711; Rajesh Gulati Vs. Govt. of NCT
of Delhi and Anr. (2002) 7 sec 129, etc. that if no bail
application was pending and the detenue was already, in fact,
in jail in a criminal case, the detention order under the
preventive detention law is illegal. These decisions appear to G
· have followed the Constitution Bench decision in Haradhan
Saha Vs. State of West Bengal, (1975) 3 SCC 198, wherein
ithas been observed (vide para 34):
"Whete the concerned person is actually in jail custody at H
752 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A the time when an order of detention is passed against him
and is not likely to be released for a fair length of time, it
may be possible to contend that there could be no
satisfaction on the part of the detaining authority a$ to the
likelihood of such a person indulging in activities which
B would jeopardise the security of the State or public order."
9. On the other hand, Mr. Altaf Ahmed, learned senior
counsel appearing for the State of Tamil Nadu, has relied on
the judgments of this Court in A. Geetha Vs. State of T.N. And
Anr. (2006) 7 SCC 603; and Ibrahim Nazeer Vs. State of T.N.
C and Anr., (2006) 6 SCC 64, wherein it has been held that even
if no bail application of the petitioner is pending but if in similar
cases bail has been granted, then this is a good ground for the
subjective satisfaction of the detaining authority to pass the
detention order.
D
10. In our opinion, if details are given by the respondent
authority about the alleged bail orders in similar cases
mentioning the date of the orders, the bail application number,
whether the bail order was passed in respect of co-accused
E in the same case, and whether the case of the co-accused was
on the same footing as the case of the petitioner, then, of
course, it could be argued that there is likelihood of the accused
being released on bail, because it is the normal practice of
most courts that if a co-accused has been granted bail and his
F case is on the same footing as that of the petitioner, then the
petitioner is ordinarily granted bail. However, the respondent
authority should have given details about the alleged bail order
in similar cases, which has not been done in the present case.
A mere ipse dixit statement in the grounds of detention cannot
G sustain the detention order and has to be ignored.
11. In our opinion, the detention order in question only
contains ipse dixit regarding the alleged imminent possibility
of the accused coming out on bail and there was no reliable
material to this effect. Hence, the detention order in question
' H cannot be sustained.
•
REKHA v. STATE OF T NADU TR.SEC.TO GOVT. &
ANR. [MARKANDEY KAT JU, J.]
753
12. Moreover, even if a bail application of the petitioner A
relating to the same case was pending in a criminal case the
detention order can still be challenged on various grounds e.g.
that the act in question related to law and order and not public
order, that there was no relevant material on which the detention
order was passed, that there was mala tides, that the order was B
not passed by a competent authority, that the condition
precedent for exercise of the power did not exist, that the
subjective satisfaction was irrational, that there was non-
application of mind, that the grounds are vague, indefinite,
irrelevant, extraneous, non-existent or stale, that there was delay c
in passing the detention order or delay in executing it or delay
in deciding the representation of the detenu, that the order was
not approved by the government, that there was failure to refer
the case to the Advisory Board or that the reference was
belated, etc.
D
13. In our opinion, Article 22(3)(b) of the Constitutio~ of
India which permits preventive detention is only an exception
to Article 21 of the Constitution. An exception is an exception,
and cannot ordinarily nullify the full force of the main rule, which
is the right to liberty in Article 21 of the Constitution. E
Fundamental rights are meant for protecting the civil liberties
of the people, and not to put them in jail for a long period without
recourse to a lawyer and without a trial. As observed in R Vs.
Secy. Of State for the Home Dept., Ex Parte Stafford, (1998)
1 WLR 503 (CA) :- F
"The imposition of what is in effect a substantial term of
imprisonment by the exercise of executive discretion,
without trial, lies uneasily with ordinary concepts of the rule
of law."
G
14. Article 22, hence, cannot be read in isolation but must
be read as an exception fo Article 21. An exception tan apply
only in rare and exceptional cases, and it cannot override the
main rule.
H
754 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A 15. Article 21 is the most important of the fundamental
rights guaranteed by the Constitution of India. Liberty of a
citizen is a most important right won by our forefathers after
·long, historical, arduous struggles. Our Founding Fathers
realised its value because they had seen during the freedom
s struggle civil liberties of our countrymen being trampled upon
by foreigners, and that is why they were determined that the right
to individual liberty would be placed on the highest pedestal
along with the right to life as the basic right of the people of
India.
c 16. Right to liberty guaranteed by Article 21 implies that
before a person is imprisoned a trial must ordinarily be held
giving him full opportunity of hearing, and that too through a
lawyer, because a layman would not be able to properly defend
himself except through a lawyer.
D
17. The importance of a lawyer to enable a person to
properly defend himself has been elaborately explained by this
Court in A. S. Mohd. Rafi Vs. State of Tamilnadu, AIR 2011
SC 308, and in Md. Sukur Ali Vs. State of Assam, JT 2011
E (2) SC 527. As observed by Mr Justice Sutherland of the U.S.
Supreme Court in Powell Vs. Alabama, 287 U.S. 45 (1932)
"Even the intelligent and educated layman has small and
sometimes no skill in the science of law'', and hence, without a
lawyer he may be convicted though he is innocent.
F 18. Article 22(1) of the Constitution makes It a fundamental
right of a person detained to consult and be defended by a
lawyer of his choice. But Article 22(3) specifically excludes the
applicability of clause (1) of Article 22 to cases of preventive
detention. Therefore, we must confine the power of preventive
G detention to very narrow limits, otherwise the great right to
liberty won by our Founding Fathers, who were also freedom
fighters, after long, arduous, historical struggles, will become
nugatory.
H 19. In State of of Maharashtra & Ors. Vs. Bhaurao
• REKHA v. STATE OF T NADU TR.SEC.TO GOVT. & 755
ANR. [MARKANDEY KAT JU, J.]
Punjabrao Gawande, (2008) 3 SCC 613 (para 23) this Court A
observed:
" ... Personal liberty is a precious right. So did the Founding
Fathers believe because, while their first object was to give
unto the people a Constitution whereby a government was
8
established, their second object, equally important, was to
protect the people against the government. That is why,
while conferring extensive powers on the government like
the power to declare an emergency, the power to suspend
the enforcement of fundamental rights or the power to issue C
ordinances, they assured to the people a Bill of Rights by
Part Ill of the Constitution, protecting against executive and
legislative despotism those human rights which they
regarded as fundamental. The imperative necessity to
protect these rights is a lesson taught by all history and all
human experience. Our Constitution makers had lived D
through bitter years and seen an alien Government trample
upon human rights which the country had fought hard to
preserve. They believed like Jeffersol'.l that "an elective
despotism was not the Government we fought for". And,
therefore, while arming the Government witli large powers E
to prevent anarchy from within and conquest from without,
they took care to ensure that those powers were not
abused to mutilate the liberties of the people. (vide A.K.
Roy Vs. Union of India (1982) 1 SCC 271, nd Attorney
General for India Vs. Amratlal Prajivandas, (1994) 5 SCC F
54." [emphasis supplied]
20. In the Constitution Bench decision of this Court in M.
Nagaraj & Ors. Vs. Union of India & Ors. (2006) 8 SCC 212,
(para 20) this Court observed :
G
"It is a fallacy to regard fundamental rights as a gift from
the State to its citizens. Individuals possess basic human
rights independently of any Constitution by reason of the
basic fact that they are members of the human race." ·
H
756 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A 21. In the 9 Judge Constitution Bench decision of this Court
in l.R. Coelho (dead) By LRs. Vs. State of T.N., (2007) 2 SCC
1 (vide paragraphs 109 and 49), this Court observed :
"It is necessary to always bear in mind that fundamental
rights have been considered to be the heart and soul of
B
the Constitution ..... Fundamental rights occupy a unique
place in the lives of civilized societies and have been
described in judgments as "transcendental", "inalienable",
and primordial".
c 22. In our opinion, Article 22(3)(b) cannot be read in
isolation, but must be read along with Articles 19 and 21, vide
Constitution Bench decision of this Court in A.K. Roy Vs. Union
of India (1982) 1_ SCC 271 (para 70).
0 23. Jt is all very well to say that preventive detention is
preventive not punitive. The truth of the matter, though, is that
in substance a detention order of one year (or any other period)
is a punishment of one year's imprisonment. What difference
is it to the detenu whether his imprisonment is called preventive
E or punitive?
24. Mr. Altaf Ahmed, learned senior counsel for the
respondents, submitted that there are very serious allegations
against the detenu of selling expired drugs after removing the
original labels and printing fresh labels to make them appear
F as though they are not expired drugs.
25. In this connection, criminal cases are already going on
against the detenu under various provisions of the Indian Penal
Code as well as under the Drugs and Cosmetics Act, 1940 and
G if he is found guilty, he will be convicted and given appropriate
sentence. In our opinion, the ordinary law of the land was
sufficient to deal with this situation, and hence, recourse to the
preventive detention law was illegal.
26. Mr. Altaf Ahmed, learned senior counsel, further
H
• REKHA v. STATE OF T NADU TR.SEC.TO GOVT. & 757
ANR. [MARKANDEY KAT JU, J.]
submitted that the impugned detention order was passed on A
08.04.2010, and the bail application of the detenu was also
dismissed on the same date. Hence, he submitted that it
cannot be said that no bail application was pending when the
detention order in question was passed.
8
· 27. In this connection, it may be noted that there is nothing ·
on the record to indicate whether the detaining authority was
aware of the fact that the bail application of the accused was
pending on the date when the detention order was passed on
08.04.2010. On the other hand, in para 4 of the grounds of
detention it is mentioned that "Thiru. Ramakrishnan is in C
remand in crime No. 1321201 O and he has not moved any bail
application so far". Thus, the detaining authority was not even
aware whether a bail application of the accused was pending
when he passed the detention order, rather the detaining
authority passed the detention order under the impression that D
no bail application of the accused was pending but in similar
cases bail had been granted by the courts. We have already
stated above that no details of the alleged similar cases has
been given. Hence, the detention order in question cannot be
sustained. E
28. It was held in Union of India Vs. Paul Manickam and
another, (2003) 8 sec 342, that if the detaining authority is
aware of the fact that the detenu is in custody and the detaining
authority is reasonably satisfied with cogent material that there F
is likelihood of his release and in view of his antecedent
activities he must be detained to prevent him from indulging in
such prejudicial activities, the detention order can validly be
made.
29. In our opinion, there is a real possibility of release of G
a person on bail who is already in custody provided he has
moved a bail application which is pending. It follows logically
that if no bail application is pending, then there is no likelihood
of the person in custody being released on bail, and hence the
H
758 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A detention order will be illegal. However, there can be an
exception to this rule, that is, where a co-accused whose case
stands on the same footing had been granted bail. In such
cases, the detaining authority can reasonably conclude that
there is likelihood of the detenu being released on bail even
B though no bail application of his is pending, since most courts
normally grant bail on this ground. However, details of such
alleged similar cases must be· given, otherwise the bald
statement of the authority cannot be believed.
30. Mr. Altaf Ahmed, learned senior counsel, further
C submitted that we are taking an over technical view of the
matter, and we should not interfere with the preventive detention
orders passed in cases where serious crimes have been
committed. We do not agree.
D 31. Prevention detention is, by nature, repugnant to
democratic ideas and an anathema to the rule of law. No
such law exists in the USA and in England (except during war
time). Since, however, Article 22(3)(b) of the Constitution of
India permits preventive detention, we cannot hold it illegal but
E we must confine the power of preventive detention within very
narrow limits, otherwise we will be taking away the great right
to liberty guaranteed by Article 21 of the Constitution of India
which was won after long, arduous, historic struggles. It follows,
therefore, that if the ordinary law of the land (Indian Penal Code
F and other penal statutes) can deal with a situation, recourse to
a preventive detention law will be illegal.
32. Whenever an order under a preventive detention law
is challenged one of the questions the court must ask in
deciding its legality is : Was the ordinary law of the land
G sufficient to deal with the situation ? If the answer is in the
affirmative, the detention order will be illegal. In the present
case, the charge against the detenu was of selling expired
drugs after changing their labels. Surely the relevant provisions
___ .in the Indian Penal Code and the Drugs and Cosmetics Act
H
• REKHA v. STATE OF T NADU TR.SEC.TO GOVT. & 759
ANR. [MARKANDEY KAT JU, J.]
were sufficient to deal with this situation. Hence, in our opinion, A
for this reason also the detention order in question was illegal.
33. In this connection, it may be noted that it is true that
the decision of the 2 Judge Bench of this Courtin Biram Chand
Vs. State of Uttar Pradesh & Anr, (1974) 4 SCC 573, was B
overruled by the Constitution Bench decision in Haradhan
Saha's case (supra) (vide para 34). However, we should
carefully analyse these decisions to correctly understand the
legal position.
34. In Biram Chand's case (supra) this Court held that the C
authorities cannot take recourse to criminal proceedings as well
as pass a preventive detention order on the same facts (vide
para 15 of the said decision). It is this view which was reversed
by the Constitution Bench decision in Haradhan Saha's case
(supra).D D
35. this does not mean that the Constitution Bench laid
down that in all cases the authorities can take recourse to both
criminal proceedings as well as a preventive detention order
even though in the view of the Court the former is sufficient E
to deal with the situation.
36. This point which we are emphasizing is of extreme
importance, but seems to have been overlooked in the
decisions of this Court.
F
37. No doubt it has been held in the Constitution Bench
decision in Haradhan Saha's case (supra) that even if a
person is liable to be tried in a criminal court for commission
of a criminal offence, or is actually being so tried, that-does not
debar the authorities from passing a detention order under a · G
preventive detention law. This observation, to be understood
correctly, must, however, be construed in the background of the
constitutional scheme in Articles 21 and 22 of the Constitution
(which we have already explained). Articles 22(3)(b) is only an
exception to Article 21 and it is not itself a fundamental right. H
760 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A It is Article 21 which is central to the whole chapter on
fundamental rights in our Constitution. The right to liberty means
that before sending a person to prison a trial must ordinarily
be held giving him opportunity of placing his defence through
his lawyer. It follows that if a person is liable to be tried, or is
8 actually being tried, for a criminal offence, but the ordinary
criminal law (Indian Penal Code or other penal statutes) will not
be able to deal with the situation, then, and only then, can the
preventive detention law be taken recourse to.
38. Hence, the observation in para 34 in Haradhan Saha's
C case (supra) cannot be regarded as an unqualified statement
that in every case where a person is liable to be tried, or is
actually being tried, for a crime in a criminal court a detention
order can also be passed under a preventive detention law.
D 39. It must be remembered that in cases of preventive
detention no offence is proved and the justification of such
detention is suspicion or reasonable probability, and there is
no conviction which can only be warranted by legal evidence.
Preventive detention is often described as a jurisdiction of
E suspicion', (Vide State of Maharashtra Vs.Bhaurao Punjabrao
Gawande, (supra) - para 63). The detaining authority passes
the order of detention on subjective satisfaction. Since clause
(3) of Article 22 specifically excludes the applicability of clauses
(1) and (2), the detenu is not entitled to a lawyer or the right to
F be produced before a Magistrate within 24 hours of arrest.
40. To prevent misuse of this potentially dangerous power
the law of preventive detention has to be strictly construed and
meticulous compliance with the procedural safeguards,
however, technical, is, in our opinion, mandatory and vital.
G
41. It has been held that the history of liberty is the history
of procedural safeguards. (See : Kamleshkumar lshwardas
Patel Vs. Union of India and others (1995) 4 SCC 51, vide
para 49). These procedural safeguards are required to be
H
• REKHA v. STATE OF T NADU TR.SEC.TO GOVT. & 761
ANR. [MARKANDEY KAT JU, J.]
zealollJsly watched and enforced by the court and their rigour A
cannot be allowed to be diluted on the basis of the nature of
the alleged activities of the detenu.
42. As observed· in Rattan Singh Vs. State of Punjab,
(1981) 4 sec 1981 :- 8
"May be that the detenu is a smuggler whose tribe (and
how their numbers increase!) deserves no sympathy since
its activities have paralysed the Indian economy. But the
laws of preventive detention afford only a modicum of
safeguards to persons detained under them, and if C
freedom and liberty are to have ahy meaning in our
democratic set-up, it is essential that at least those
saf13guards are not denied to the detenus."
43. As observed in Abdul Latif Abdul Wahab Sheikh Vs. o
B.K. Jha and another (1987) 2 SCC 22, vide para 5,
"... The procedural requirements are the only safeguards
available to a detenu since the court is not expected to go
behind the subjective satisfaction of the detaining authority.
The procedural requirements are, therefore, to be strictly E
complied with if any value is to be attached to the liberty
of the subject and the constitutional rights guaranteed to
him in that regard .... "
44. As observed by Mr. Justice Douglas of the United F
States Supreme Court in Joint Anti-Fascist Refugee
Committee Vs. McGrath, 341 US 123 at 179, "It is procedure
that spells much of the difference between rule of law and rule
of whim or caprice. Steadfast adherence to strict procedural
safeguards are the main assurances that there will be equal G
justice under law."
45. Procedural rights are not based on sentimental
concerns for the detenu. The procedural safeguards are not
devised to coddle criminals or provide technical loopholes
H
I
762 SUPREME COURT REPORTS [2011) 4 S.C.R.
•
A through which dangerous persons escape the consequences
of their acts. They are basically society's assurances that the
authorities will behave properly within rules distilled from long
centuries of concrete experiences.
46. Personal liberty protected under Article 21 is so
8
sacrosanct and so high in the scale of constitutional values that
it is the obligation of the detaining authority to show that the
impugned detention meticulously accords with the procedure
established by law. The stringency and concern of judicial
C vigilance that is needed was aptly described in the following
words in Thomas Pacham Dale's case, (1881) 6 QBD 376, :
"Then comes the question upon the habeas corpus. It is a
general rule, which has always been acted upon by the
Courts of England, that if any person procures the
D imprisonment of another he must take care to do so by
steps, all of which are entirely regular, and that if he fails
to follow every step in the process with extreme regularity
the court will not allow the imprisonment to continue."
E 47. For the reasons given above, this Appeal is allowed,
the impugned order is set aside and the impugned detention
order is quashed. However, we make it clear that this will not
affect the criminal cases pending against the alleged accused.
48. We further direct that the concerned detenu in this
F Appeal shall be released forthwith if not required in any other
case.
CRIMINAL APPEAL NO. 756 of 2011; CRIMINAL APPEAL
NO. 757 of 2011; CRIMINAL APPEAL NO. 759. of 2011;
G CRIMINAL APPEAL NO. 760 of 2011: CRIMINAL APPEAL
NO. 762 of 2011; CRIMINAL APPEAL NO. 763 of 2011;
CRIMINAL APPEAL NO. 764 of 2011
49. The Order passed in CRIMINAL APPEAL NO. 755 OF
2011 will also govern these Appeals.
H
• REKHA v. STATE OF T NADU TR.SEC.TO GOVT. & 763
ANR. [MARKANDEY KATJU, J.]
50. Accordingly, for the reasons given in the Order passed A
in CRIMINAL APPEAL NO. 755 OF 2011, these Appeals are
allowed, the impugned common order is set aside and the
impugned detention orders are quashed. However, we make
it clear that this will not affect the criminal cases pending against
the alleged accused persons. B
51. We further direct that the concerned detenus in these
Appeals shall be released forthwith if not required in any other
case.
N.J. Appeals allowed.
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