Holding

A writ court cannot ordinarily set aside a preventive detention order at the pre‑execution stage unless the exceptional circumstances specified in Alka Subhash Gadia are satisfied; consequently, the High Court’s order was erroneous and is set aside.

Summary

Bhaurao Punjabrao Gawande, a petroleum transporter, was alleged to have repeatedly engaged in black‑marketing of kerosene and faced several prosecutions under the Essential Commodities Act, 1955. The Commissioner of Police, acting under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, issued a preventive detention order on July 27, 2006, which Gawande could not be served because he absconded. He filed a writ petition under Article 226 challenging the order at the pre‑execution stage, and the High Court set aside the detention, holding that the order was passed for a wrong purpose. The Supreme Court examined whether a writ court may interfere with a preventive detention order before it is executed, emphasizing the need for exceptional circumstances as outlined in Alka Subhash Gadia, and affirmed that the detaining authority’s subjective satisfaction is reviewable only on limited grounds. Finding no such exception, the Court held the High Court erred, set aside its order and restored the detention order, allowing the State to execute it.

Issues considered

The jurisdiction of a High Court under Article 226 to quash a preventive detention order at the pre‑execution or pre‑arrest stage.
Whether the subjective satisfaction of the detaining authority under the 1980 Act can be judicially reviewed.
Whether the detention order was passed for a ‘wrong purpose’ in view of alleged custodial violence and the detenu’s failure to surrender.
Whether the inability to serve the grounds of detention precludes the detenu from seeking writ relief.
The applicability of the exceptions enumerated in Alka Subhash Gadia for pre‑execution interference.

Legislation cited

Bombay Police Act, 1951s. 59
Code of Criminal Procedure, 1973s. 110, s. 111
Constitution of Indias. 22, s. 226
Essential Commodities Act, 1955

Subjects

preventive detentionpre‑execution challengesubjective satisfactionArticle 226detention orderpreventive lawjudicial reviewexceptional circumstancesblack marketingessential commodities

Judgment

[2008] 3 S.C.R. 967

STATE OF MAHARASHTRA & ORS. A
• v.
BHAURAO PUNJABRAO GAWANDE
(Criminal Appeal No. 417 of 2008)
MARCH 3, 2008
B
(C.K. THAKKER AND ALTAMAS KABIR, JJ.]

Preventive Detention:
Detention order - Challenge to, at pre-execution or pre-
arrest stage·- Held: Writ court cannot set aside the detention C
order at pre-execution or pre-arrest stage unless court is
satisfied that there are exceptional circumstances - In such
cases, jurisdiction is based on suspicion - Action is taken to
prevent the person from acting in any manner prejudicial to
certain activities under the Detention Law - Ordinarily detenu . D
cannot seek writ of mandamus if he does not surrender and is
not served with detention order and its grounds - On facts,
detaining authority arrived at subjective satisfaction while
passing detention order for indulging in black marketing of
kerosene - Order was not passed for a wrong purpose, Detenu · E
absconded and grounds could not be served - Thus, High
Court erred in quashing the detention order at pre-execution
stage - Order of High Court set aside - Prevention of Black
Marketing and Maintenance of Supplies of Essential
Commodities Act, 1980 :.._ Constitution of India, 1950 - Article F
(
226.
Detention order - Subjective satisfaction of Detaining
Authority- Judicial review- Scope of- Held: Court can always
examine whether subjective satisfaction is arrived at by the
Detaining Authority- If it is not, the exercise of power would be G
bad - Court cannot go into correctness of facts stated or
. -;
·allegations leveled - It is to investigate into circumstances of
suspicion on which such anticipatory action was based.

967 H
968 SUPREME COURT REPORTS [2008] 3 S.C.R.

A Preventive Detention - Meaning and concept of .,
~

The respondent was engaged in the business of
transportation of petroleum products. He was indulging
in black marketing of kerosene oil which was an essential
commodity. Several cases were registered against him
B under the Essential Commodities Act, 1955. Respondent
executed a bond under the Code of Criminal Procedure,
1973 for good behaviour. Despite that, he continued to
indulge in black marketing of kerosene. The appellant
no.2-Commissioner of Police passed detention order
c under the Prevention of Black Marketing and Maintenance
of Supplies of Essential Commodities Act, 1980 and
directed that the respondent be detained. The grounds
of detention were sought to be served to the detenu on
the same day. The detention order was approved by the
D State Government. Detenu came to know about the •
detention order passed against him and absconded t

himself and thus, he could not be detained nor served
with the detention order. Respondent-detenu neither
submitted to the detention order nor surrendered and filed
E writ petition for quashing and setting aside the detention
order being illegal, unwarranted and initiated by malafide.
The High Court set aside the detention order. Hence the
present appeal.
Appellant-State contended that the High Court erred ..
F in exercising jurisdiction under Article 226 of the
Constitution against an order of detention at a pre- y

ex~cution stage; that the preliminary objection raised by
the Detaining Authority was well founded; that High Court
ought to have taken into consideration that the order could
G not be served upon the detenu; that the detenu
absconded himself and successfully avoided service of
order of detention, grounds of detention and relevant
documents in support of the order, therefore, the ~
....
authorities were constrained to affix the order at a
H conspicuous place of residence of the detenu; that
STATE OF MAHARASHTRA & ORS. v. BHAURAO 969
PUNJABRAO GAWANDE

several cases had been instituted against the detenu A
under the 1955 Act; that the consistent conduct of the
detenu revealed that he continued to indulge in black
marketing activities; that the preventive action was called
for; that the High Court was not right in observing that
there was 'custodial violence' by police authorities when s
he was arrested in connection with a criminal matter and
the same does not make detention order vulnerable; that
the High Court was not right that no other steps had been
considered by the Authorities; and that the detenu was
directed to execute a bond of good behaviour and such c
bond was executed by him.
Respondent-detenu contended that in an
appropriate case, if the Court is satisfied that the detention
order is ex-facie illegal, void, without jurisdiction or
actuated by mala tides, the Court has jurisdiction to grant D
relief to the detenu even if the order is not executed and
the person is not served with such order; that the High
Court was satisfied that one of the exceptions carved out
by this Court in Alka Subhash Gadia's case had been
made out and the Court exercised the power which E
cannot be said to be illegal or contrary to law; that when
it was alleged by the detenu that there was 'custodial
violence' by police authorities, such complaint and the
requisite materials should have been placed before the
Detaining Authority and the Detaining Authority was F
bound to consider them; that if no such material was
placed before the Authority or was placed but not
considered by the Detaining Authority, there was non-
application of mind on the part of the Authority and it can
be concluded that the order was passed for a 'wrong G
purpose' and was liable to be set aside; and that no
allegation had been. made by appellants that subsequent
to the setting aside of the detention order, detenu has
indulged in black-marketing activities.
Allowing the appeal, the Court H
970 SUPREME COURT REPORTS [2008) 3 S.C.R.

~
A HELD: 1.1 The order of detention has been made ~

against the detenu in exercise of power under the
Prevention of Black Marketing and Maintenance of
Supplies of Essential Commodities Act, 1980 since the
Detaining Authority was satisfied that detention of the writ-
8 petitioner was necessary "with a view to preventing him
from acting in any manner prejudicial to the maintenance t
of supplies of commodities to the community" i.e. selling
o'f kerosene in black market. Such order must be
'preventive' and not 'punitive' in nature. But the Court
c must be conscious and mindful that the satisfaction of
the Detaining Authority is 'subjective' in nature and the
Court cannot substitute its 'objective' opinion for the
subjective satisfaction of Detaining Authority for coming
to the conclusion whether the activities of the detenu were
D
or were not prejudicial to the maintenance of supplies of
essential commodities to the society. [Para 16] [982-G;
..
983-A, B, C]
1.2. Subjective satisfaction being a condition
precedent for the exercise of the power of preventive
E detention conferred on the executive, the Court can
always examine whether the requisite satisfaction is
arrived at by the authority; if it is not, the condition
precedent to the exercise of the power would not be
fulfilled and the exercise of the power would be bad. A I..

F Court cannot go into correctness or otherwise of the facts
stated or allegations leveled in the grounds in support of r
detention. A Court of Law is 'the last appropriate tribunal
to investigate into circumstances of suspicion on which
such anticipatory action must be largely based.' However,
that does not mean that the subjective satisfaction of
G
Detaining Authority is wholly immune from judicial
reviewability. The courts have carved out areas, though
limited, within which the validity of subjective satisfaction I ""
can be tested judicially. [Paras 31, 32 and 33] [990-C, D, E, F]
H 1.3 An order of detention can be challenged on
STATE OF MAHARASHTRA & ORS. v. BHAURAO 971
PUNJABRAO GAWANDE

certain grounds, such as, the order is not passed by the A
'1
competent authority, condition precedent for the exercise
""
of power does not exist; subjective satisfaction arrived.
at by the Detaining Authority is irrational, the order is mala
fide; there is non-application of mind on the part of the
Detaining Authority in passing the order; the grounds are, B
or one of the grounds is, vague, indefinite, irrelevant,
J 4- extraneous, non-existent or stale; the order is belated;
the person against whom an order is passed is alrea{!y in
jail; the order is punitive in nature; the order is not
approved by State/Central Government as required by c
law; failure to refer the case of the detenu to the Board
constituted under the statute; the order was quashed/
revoked and again a fresh order of detention was made
without new facts, etc. [Para 34] [990-F, G, H, 991-A, B]

.. i 1.4 With regard to the question whether actual D
detention of a person against whom an o_rder of detention
is made is sine qua non or condition precedent for
approaching a Court of Law, normally and as a general
rule, an order of detention can be challenged by the
detenu after such order as also the grounds of detention E
have been received by him and the order is executed. In
exceptional cases, however, a High Court or this Court
may exercise extra-ordinary powers to protect a person
against an illegal invasion of his right to freedom by
J
protecting him while still he is free by issuing an F
'{
appropriate writ, direction or order including a writ in the
nature of mandamus questioning an order of detention
and restraining the authorities from interfering with the
right of liberty of an individual against whom such order
is made. [Paras 35 and 36] [991-D, E, F, G] · G
Kiran Pasha v. Government of A.P (1990) 1 SCC 328;
Addi. Secretary to the Government of India and Ors. vs. Smt.
"""' .Ji
Alka Subhas Gadia and Anr. 1992 Supp (1) SCC 496 -
referred to.
H
972 SUPREME COURT REPORTS [2008) 3 S.C.R.

A 1.5 The submission that on the facts and in the
circumstances of the case, the High Court was right in
holding that exception (iii) in Alka Subhash Gadia got
attracted inasmuch the order was passed for wrong
purpose cannot be accepted. With regard to the authority
B of the Commissioner of Police, the High Court was
satisfied that the order was passed by the authority
competent to exercise the power. It was also clear that • •
the order was passed 'under the Act' since the Detaining
Authority was satisfied that the detention of the writ
c petitioner was necessary 'with a view to preventing him
from acting in any manner prejudicial to the maintenance
of supplies of essential commodities to the community'
i.e. kerosene. The grounds cannot be said to be vague,
extraneous irrelevant or non-existent. In fact, the detenu
D absconded and grounds could not be served. It is not
even alleged that the order is sought to be executed
against a wrong person. (Paras 42 and 43] (997-B, C, D, E, F]
1.6 The detenu submitted before the High Court that
certain offences had been registered against the detenu
E and they were under investigation; that the report of the
Chemical Analyzer was not received and yet the Detaining
Authority took into account those cases; that offences
were registered against the detenu in July, 2003,
September, 2005 and May, 2006 and no preventive action
F was thought necessary to be taken by the authority at
any stage; that it was when the detenu was arrested in
2006 and a complaint was made against 'custodial
violence' meted out to him by police authorities while he
was in custody; that with a view to save the skin of erring
G police officials an illegal order of detention was passed,
thus, it was made for 'wrong purpose' and not with a view
to prevent the writ petitioner from indulging in black
marketing of kerosene. The High Court found
'considerable force' in the submission and held that the
order was passed for wrong purpose. The High Court
H
STATE OF MAHARASHTRA & ORS. v. BHAURAO 973
PUNJABRAO GAWANDE

went wrong in observing that once a detenu had made A
allegations against the police atrocities and custodial
violence, the Detaining Authority ought to have waited till
the inquiry was conducted and report submitted. It also
erred in holding that two parallel and simultaneous
proceedings were not permissible in law. [Paras 44 B
and 46] [997-F, G; 998-A, B, C; 999-A]
Hardhan Saha v. State of WB. 1975 (3) SCC 198 -
followed.
Biram Chand v State of UP & Ors (1974) 4 SCC 573 - c
referred to.
1.7 Considering the facts on record in their entirety,
it is clear that many cases had been filed against the
detenu under the 1955 Act. It was alleged that the writ
petitioner was indulging in illegal activities of black D
marketing of kerosene which was an essentia.I
commodity. Those cases had been registered in 2002,
2003, 2005 and 2006. Thus, the action was taken on the
basis of past conduct of the detenu having reasonable
prognosis of future behaviour and there was 'live link' E
between the activities of the detenu and the action of-.
preventive detention to reach subjective satisfaction by
the Detaining Authority. It has come on record that the
detenu was called upon to execute a bond for good
behaviour under sections 110 and 111 of the Code of F
Criminal Procedure, 1973. Therefore, it is clear that the
authorities had taken steps under the relevant law. But
even otherwise, such questions may become relevant anJ
can be considered after the order of detention is executed.
[Para 48] [1001-A, B, C, D]
G
1.8 The detention of the writ-petitioner would not be

.' affected if the detenu was ill-treated when he was in
custody in connection with any case registered against
him under the 1955 Act, or there was custodial violence.
Whether there was such custodial violence and whether H
974 SUPREME COURT REPORTS [2008) 3 S.C.R.

A police officers had abused their position can indeed be r .,
gone into by a competent authority or by a Court of law.
That circumstance, however, will not make the order of
detention invalid or for a 'wrong pwrpose'. Externment
proceedings initiated against the detenu under section
B 59 of the Bombay Police Act, 1951 also would not make
the action assailable. Therefore, this was not a case in
which interference was warranted at pre-execution stage.
[Para 49) [1001-D, E, F]
1.9 As a general rule, an order of detention passed
c by a Detaining Authority under the relevant 'preventive
detention' law cannot be set aside by a Writ Court at the
pre-execution or pre-arrest stage unless the Court is
satisfied that there are exceptional circumstances
specified in Atka Subhash Gadia's case. The Court must
D be conscious and mindful of the fact that this is a
t
..
'suspicious jurisdiction' i.e. jurisdiction based on
suspicion and an action is taken 'with a view to prewmt' a
person from acting in any manner prejudicial to ctJrtain
activities enumerated in the relevant detention law.
E Interference by a Court of Law at that stage must be an
exception rather than a rule and such an exercise can be
undertaken by a Writ Court with extreme care, caution and
circumspection. A detenu cannot ordinarily seek a writ of
mandamus if he does not surrender and is not served with
an order of detention and the grounds in support c1f such ...
F
order. The instant case does not fall within the category )'
of exceptional cases and the High Court exceeded its
jurisdiction in entertaining the writ-petition and in
quashing and setting aside the order of detention at pre-
execution stage and pre-arrest stage. Therefore, the order
G
of the High Court setting aside the detention order is set
aside. It is open to the authorities to execute the order of

• ..
detention. It is equally open to the detenu to challenge
the legality thereof on all available grounds. [Paras 58
and 59) [1004-G; 1005-A, B, C, D, E]
H
STATE OF MAHARASHTRA & ORS. v. BHAURAO 975
PUNJABRAO GAWANDE

'I Addi. Secretary to the Government of India and Ors. vs. A
Smt. Atka Subhas Gadia and Anr. 1992 Supp (1) SCC 496;
'
A.K. Roy v. Union of India 1982 (1) SCC 271; Attorney General
for India v. Amritla/ Pranjivandas 1994 (5) SCC 54; Bhut Nath
v. State of West Bengal 1974 (3) SCR 315; State of WB. v.
Ashok Dey, 1972 (2) SCR 434; ADM Jaba/pur v. Shirakant B
Shukla 1976 Supp SCR 132 - relied on.
~
Sapmawia v. Deputy Commissioner, Aijal 1971 (1) SCR
690; Khudiram Das v. State of WB., 1975 (2) SCR 832;
Naresh Kumar Goyal v. Union of India 2005 (8) SCC 276;
Subhash Muljimal Gandhi v. L. Himingliana & Anr. (1994) 6 c
SCC 14; State of Bihar v. Ram Balak Singh (1966) 3 SCR
344; Rajinder Arora v. Union of India & Ors (2006) 4 SCC ·
796; K.S. Mangamuthu v. State of Tamil Nadu & Ors (2006) 4
sec 792 - referred to.
D
• , 503; R.CoxV v.Home Secretary 1999 (2) AC 38 : 1997 (1) WLR
Hakes 1890 (15) AC 506 : 60 LJQB 89; R V.
Secretary of State for Home Affairs; ex parte O'Brien, 1923 (2)
KB 361; Darnel, Re 1927 (3) St Tr. 1; Greene v. Secretary of
State for Home Affairs 1941 (3) All ER 388 : 1942 AC 284 -
referred to. E

Halsbury's Laws of England 4th Edn., Vol. 11, para 1454,
p. 769 - referred to.

... CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 417 of 2008. F
y'
From· the final Judgment and Order dated 17.10.2006 of
the High Court of Judicature at Bombay, Nagpur Bench, Nagpur
in Criminal Writ Petition No. 372 of 2006.
Manish Pitale and Ravindra Keshavrao Adsure for the G
Appellants.

~
J.M. Gandhi, SatyajitA. Desai, Anagha S. Desai, Amol N.
Suryawanshi and Venkateswara Rao Anumolu for the
Respondent.
H
976 SUPREME COURT REPORTS [2008] 3 S.C.R.

A The Judgment of the Court was delivered by
C.K. THAKKER, J. 1. Leave granted.
2. The present appeal is filed by the State of Maharashtra
and others against the sole respondent (original petitioner)
B against the judgment and order passed by the High Court of
Judicature at Bombay (Nagpur Bench) on October 17, 2006 in
Writ Petition No. 372 of 2006. By the impugned order, the High •
Court (partly) allowed the petition filed by the detenu-writ
petitioner and set aside the order of detention dated July 27,
c 2006 passed by the Commissioner of Police (Nagpur City)
under the Prevention of Black Marketing and Maintenance of
Supplies of Essential Commodities Act, 1980.
FACTUAL MATRIX
3. The case of the appellants is that one Bhaurao
0
Punjabrao Gawande (detenu) was running a business of •
transportation of petroleum products and had fleet of tankers '"
for carrying on the said occupation. He was indulging in illegal
purchase and sale of blue kerosene oil in black market since
E last five to six years. Certain cases were also registered against
the said Bhaurao under the Essential Commodities Act, 1955
(hereinafter referred to as '1955 Act'). In view of continuous
activities of Bhaurao in black-marketing of essential commodity
(Kerosene), the Commissioner of Police (appellant No.2 herein),
in exercise of power conferred on him by sub-section (1) read
F with Clause (b) of sub-section (2) of the Prevention of Black
Marketing and Maintenance of Supplies of Essential ...,
Commodities Act, 1980 (hereinafter referred to as 'the Act')
directed that the said Bhaurao be detained. Grounds of detention
were sought to be served to the detenu on the same day.
G
4. According to the appellants, in accordance with sub-
section (3) of Section 3 of the Act, the order of detention passed
by the Commissioner of Police was approved by the State ...
Government. The detenu somehow came to know about the '
H order of detention being passed again him and absconded
STATE OF MAHARASHTRA & ORS. v. BHAURAO 977
PUNJABRAO GAWANDE [C.K. THAKKER, J.]

i himself. He, therefore, could not be detained, nor served with A
~
the order or grounds of detention in support of the order.

WRIT PETITION
5. The detenu, without submitting to the order of detention
and surrendering, filed Writ Petition No. 372 of2006 in the High B
Court of Bombay (Nagpur Bench) for an appropriate writ,
~
direction or order quashing and setting aside the order of
detention dated July 27, 2006 being illegal, unwarranted and
vitiated by mala fide. Other reliefs were also sought.

COUNTER AFFIDAVIT c
6. An affidavit in reply was filed by the Detaining Authority,
inter atia, contending _that the petition filed by the detenu was
not maintainable at law. The detenu got the information about
the order of detention, absconded himself and the order of
• D
~ detention could not be served upon him. The order was,
therefore, affixed at a conspicuous place at the res-idence of
the detenu on July 30, 2006 and a panchanama was drawn by
the Police Inspector of Sakkardara Police Station, Nagpur. Since
the detenu was not available, grounds of detention along with
relevant documents also could not be served upon him. It was
E
stated that the order of detention was approved by the State
Government. Moreover, the entire proceedings of detention
were submitted to the Advisory Board constituted under Section
4 10 of the Act as required by law. The Government decided the
period of detention only after the opinion of the Advisory Board F
"<:
under Section 12 of the Act.
7. On merits, it was contended on behalf of the Detaining
Authority that the detenu was indulging in black marketing of
kerosene oil which was an 'essential commodity' and several
G
cases had been registered against him. It was also stated that
the detenu had executed a bond under the Code of Criminal
~
(
Procedure, 1973 for good behaviour. In spite of all these steps,
the detenu continued to indulge in black marketing activities of
essential commodity and the Detaining Authority was satisfied
H
978 SUPREME COURT REPORTS [2008] 3 S.C.R.

A that "with a view to preventing him from acting in any manner ,_
prejudicial to the maintenance of supplies of essential •
commodities to the community'', it was necessary to detain him
and accordingly the order was passed. It was, therefore,
submitted that the petition was liable to be dismissed, particularly
B when the detenu absconded and the order of detention along
with grounds of detention and other documents could not be
personally served and could not be executed. +
HIGH COURT JUDGMENT

c 8. The High Court, by the impugned order, held that the
detenu was not entitled to know the grounds on which the order
of detention had been passed, unless he surrendered. The
Court, however, proceeded to state that it perused the grounds
of detention with a view to satisfy itself about the legality of the
order of detention. The Court noted that the authorities made
D
the record available to the Court and the Court had 'carefully' ~
•
examined it. The Court then concluded;
"We find that the present petition can be entertained at
pre-execution stage".
E
9. The High Court considered the relevant provisions of
the Act as also the Maharashtra Kerosene Dealers' Licensing
Order, 1966 and the Kerosene (Restriction on Use and Fixation
of Ceiling Price) Order, 1993. It observed that if the cases
instituted against the detenu were taken into consideration by ,..
F the Detaining Authority, it could not be said that the Detaining
Authority could not have reached 'subjective satisfaction' on that
'
basis and as such the order could not be challenged. The High
Court also conceded that normally, a Court would not interfere
with the order of detention at pre-execution stage. It, however,
G held that the present case was covered by one of the exceptions
laid down in Addi. Secretary to the Government of India & Ors.
v. Smt. Atka Subhash Gadia & Anr, 1992 Supp (1) SCC 496
and hence the petition was maintainable and the detenu was •
entitled to relief. The High Court accordingly set aside the order
H of detention. The legality of said order is questioned by the
STATE OF MAHARASHTRA & ORS. v. BHAURAO 979
PUNJABRAO GAWANDE [C.K. THAKKER, J.]

t
f Authorities in the present appeal. A
PREVIOUS ORDERS
10. On February 12, 2007, when the matter was placed
for admission hearing, notice was issued and was made
returnable within three weeks. On August 13, 2007, four weeks B
t
time was sought by the detenu for filing counter affidavit. The
Court, however, passed the following order;
"The matter relates to grant of relief by the High Court
under Article 226 of the Constitution at pre-arrest stage.
This Court had issued notice on February 12, 2007. c
On the facts and in the circumstances of the case, in our
opinion, we should not grant four weeks' time as prayed
for. Two weeks' time is granted, as a last chance, for filing
. .. counter affidavit.
D
List thereafter".
11. Affidavit-in-reply was thereafter filed. On December 13,
2007, the Registry was directed to list the matter for final hearing
in the first week of February, 2008 on a non-miscellaneous day
and that is how the matter is before us. E

12. We have heard learned counsel for the parties.

, APPELLANTS' SUBMISSIONS
13. The learned counsel for the appellants strenuously F
" contended that the High Court was wholly in error in exercising
jurisdiction under Article 226 of the Constitution against an order
of detention at a pre-execution stage. It was submitted that the
preliminary objection raised by the Detaining Authority was well
founded that the High Court should not have entertained the writ G
petition and set aside the order of detention before the order
could be executed against the detenu. It was also submitted
~ . that an important factor which ought to have been taken into
consideration by the High Court that the order could not be
served upon the detenu, was a material factor. The detenu
H
980 SUPREME COURT REPORTS [2008] 3 S.C.R.

A absconded himself and successfully avoided service of order
of detention, grounds of detention and relevant documents in •
support of the order. The authorities were, therefore, constrained
to affix the order at a conspicuous place of residence of the
detenu. The said factor was crucial and the High Court should
B have refused to exercise jurisdiction in favour of the detenu.
14. On merits, it was contended that several cases had
been instituted against the detenu under the 1955 Act and
consistent conduct of the detenu revealed that he continued to
indulge in black marketing activities. If it is so, a preventive action
c under the Act was called for and such action could not have
been interfered with by the High Court. It was also submitted
that the High Court was not right in observing that the detenu
was ill-treated when he was arrested in connection with Crime
No. 3022 of 2006 at Police Station, Wadi (Nagpur) and there
D was 'custodial violence' by police authorities. But, even if it is
assumed to be true, the detenu could have taken appropriate
;.
.
action in accordance with law. That, however, does not make
order of detention vulnerable. The counsel also contended that
the High Court was not right that no other steps had been
E considered by the authorities. In fact, the detenu was directed
to execute a bond of good behaviour and such bond was also
executed by him. It was, therefore, submitted that the order
passed by the High Court deserves to be set aside by allowing
the Detaining Authority to execute the order of detention against
..
F the detenu and by granting liberty to the detenu to challenge the
order by taking appropriate action in accordance with law
against such detention. '

RESPONDENT'S SUBMISSION
15. Learned counsel for the respondent-detenu, on the
G
other hand, supported the order of the High Court. He submitted
that normally a High Court or this Court, in exercise of
extraordinary powers under Article 226 or 32 of the Constitution , ,.
does not interfere with an order of detention at pre-execution
stage. But, there is no restriction, limitation or prohibition on the
H
STATE OF MAHARASHTRA & ORS. v. BHAURAO 981
PUNJABRAO GAWANDE [C.K. THAKKER, J.]

>f power of the Court in exercising constitutional powers. It is a A
• self-imposed limitation by Courts themselves. In an appropriate
case, however, if the Court is satisfied that the order is ex-facie
illegal, void, without jurisdiction or actuated by mala fides, the
Court has jurisdiction to grant relief to the detenu even if the
order is not executed and th.e person is not served with such B
order. In the case on hand, the learned counsel submitted, the
._ High Court was satisfied that one of the exceptions carved out
by this Court in Atka Subhash Gadia had been made out and
the Court exercised the power which cannot be said to be illegal
or contrary to law. It was also submitted that when it was alleged C
by the detenu that there was 'custodial violence' by police
authorities, such complaint and the requisite materials should
have been placed before the Detaining Authority and the
Detaining Authority was bound to consider them. If no such
material was placed before the authority or was placed but not
0
• .f considered by the Detaining Authority, there was non- application
of mind on the part of the authority and it can be concluded that
the order was passed for a 'wrong purpose' and was liable to
be set aside. Finally, it was submitted that the order of detention
was set aside by the High Court on October 17, 2006 and no
allegation had been made by the appellants that subsequent to E
the said order, the detenu has indulged in black-marketing
activities. Hence, even if this Court is convinced that the High
Court was not right in exercising jurisdiction at pre-execution
, stage, this Court may not interfere with the decision of the High
Court. F
y

WHETHER HIGH COURT WAS RIGHT IN QUASHING
ORDER OF DETENTION?
16. Having heard learned counsel for the parties and having
given anxious consideration to the facts and circumstances of G
the case, we are clearly of the view that the High Court exceeded
its jurisdiction in entertaining the writ-petition and in quashing
• ' and setting aside the order of detention at pre-execution stage.
It cannot be gainsaid that the order of detention has been made
against the detenu in exercise of power under the Act since the H
982 SUPREME COURT REPORTS [2008] 3 S.C.R.

A Detaining Authority was satisfied that detention of the writ-"'
petitioner was necessary "with a view to preventing him from •
acting in any manner prejudicial to the maintenance of supplies
of commodities to the community" i.e. selling of kerosene in
black market. True it is that such order must be 'preventive' and
B not 'punitive' in nature. But the Court must be conscious and
mindful that the satisfaction of the Detaining Authority is
'subjective' in nature and the Court cannot substitute its'
'objective' opinion for the subjective satisfaction of Detaining
Authority for coming to the conclusion whether the activities of
C the detenu were or were not prejudicial to the maintenance of
supplies of essential commodities to the society. It would,
therefore, be appropriate if we consider the concept of and
relevant principles governing 'preventive detention'.
PERSONAL LIBERTY : PRECIOUS RIGHT
D
17. There can be no doubt that 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 established, their second object,
equally important, was to protect the people against the
E 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 Ordinances, they assured to the people a
Bill of Rights by Part Ill of the Constitution, protecting against 4.
F executive and legislative despotism those human rights which
they regarded as 'fundamental'. The imperative necessity to "
protect those rights is a lesson taught by all history and all human
experience. Our Constitution makers had lived through bitter
years and seen an alien government trample upon human rights
G which the country had fought hard to preserve. They believed
like Jefferson that "an elective despotism was not the
government we fought for." And therefore, while arming the
Government with large powers to prevent anarchy from within ' •
and conquest from without, they took care to ensure that those
H powers were not abused to mutilate the liberties of the people
STATE OF MAHARASHTRA & ORS. v. BHAURAO 983
PUNJABRAO GAWANDE [C.K. THAKKER, J.]

• [vide A.K. Roy v. Union of India, (1982) 1 SCC 271; Attorney A
General for India v. Amritlal Pranjivandas, (1994) 5 SCC 54].
18. It has been observed in R. v. Home Secretary, (1999)
2 AC 38 : (1997) 1 WLR 503,
"The imposition of whatis in effect a substantial term of 8
imprisonment by the exercise of executive discretion,
l-
without trial, lies uneasily with ordinary concepts of the
rule of law".
HABEAS CORPUS : FIRST SECURITY OF CIVIL
LIBERTY c
19. The celebrated writ of habeas corpus has been
described as "a great constitutional privilege" or "the first security
of civil liberty". The writ provides a prompt and effective remedy
against illegal detention. By this writ, the Court directs the person
D
.. t or authority who has detained another person to bring the body
of the prisoner before the Court so as to enable the Court to
decide the validity, jurisdiction or justification for such detention. ·
The principal aim of the writ is to ensure swift judicial review of
alleged unlawful detention on liberty or freedom of the prisoner
ordetenu. E

20. In Cox v. Hakes, (1890) 15 AC 506 : 60 LJQB 89,
Lord Halsbury propounded:
"For a period extending as far back as our legal history,
the writ of habeas corpus has been regarded as one of F
the most important safeguards of the liberty of the subject.
If upon the return to that writ it was adjudged that no legal
ground was made to appear justifying detention, the
consequence was immediate release from custody: If
release was refused, a person detained might make a G
fresh application to every judge or every Court in turn, and
each Court or Judge was bound to consider the question
' { independently and not to be influenced by the previous,
decisions refusing discharge. If discharge followed, the
legality of that discharge. could never .be brought in H
984 SUPREME COURT REPORTS (2008] 3 S.C.R.

A question. No writ of error or demurrer was allowed." ~

21. In R v. 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
B 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
c 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. It is
D quite possible, even probable, that the subject in this case
is guilty of high treason; he is still entitled only to be
t •
deprived of his liberty by due process of law". (emphasis
supplied)
22. As early as in 1627, the following memorable
E observations were made by Hyde, C.J. in Darnel, Re, (1927) 3
StTr. 1:
"W~ether the commitment be by the King or others, this
Court is a place where the King doth sit in person, and we
F have power to examine it, and if it appears that any man
hath injury or wrong by his imprisonment, we have power
to deliver and discharge him, if otherwise, he is to be
remanded by us to prison".
23. In Halsbury's Laws of England, (4 1h Edn., Vol.11, para
G 1454, p.769), it is stated:
"In any matter involving the liberty of the subject the action
of the Crown or its ministers or officials is subject to the
supervision and control of the judges on habeas corpus.
' '
The judges owe a duty to safeguard the liberty of the subject
H
STATE OF MAHARASHTRA & ORS. v. BHAURAO 985
PUNJABRAO GAWANDE [C.K. THAKKER, J.]
~ not only to the subjects of the Crown, but also to all persons A
)
within the realm who are under the protection of the Crown
and entitled to resort to the courts to secure any rights
which they may have, and this whether they are alien
friends or alien enemies. It is this fact which means the
prerogative writ of the highest constitutional impo'rtance, B
itbeing a remedy available to the lowliest subject against
the most powerful. The writ has frequently been used to
test the validity of acts of the executive and, in particular,
to test the legality of detention under emergency legislation.
No peer or lord of Parliament has privilege of peerage or c
Parliament against being compelled to render obedience
to a writ of habeas corpus directed to him".
24. In Greene v. Secretary of State for Home Affairs,
(1941) 3 All ER 388 : 1942 AC 284, Lord Wright observed:

'~'
D
"The inestimable value of the proceedings is that it is the
most efficient mode ever devised by any system of law to
end unlawful detainments and to secure a speedy release
where the circumstances and the law so required''.
25. The underlying object of the writ of habeas corpus has E
been succinctly explained by Dua, J. in Sapmawia v. Deputy
Commissioner, Aija/, (1971) 1 SCR 690, in the following words:
"The writ of habeas corpus is a prerogative writ by which,
the causes and validity of detention of a person are
•. investigated by summary procedure and if the authority F
having his custody does not satisfy the court that the
deprivation of his personal liberty is according to the
procedure established by law, the person is entitled to his
liberty. The order of release in the case of a person
suspected of or charged with the commission of an offence G
does not per se amount to his acquittal or discharge and
\ ' the authorities are not, by virtue of the release only on
habeas corpus, deprived of the power to arrest and keep
him in custody in accordance with law for this writ is not
designed to interrupt the ordinary administration of criminal H
986 SUPREME COURT REPORTS [2008] 3 S.C.R.

A law".
<
PREVENTIVE DETENTION MEANING AND
CONCEPT
26. There is no authoritative definition of 'preventive
B detention' either in the Constitution or in any other statute. The
expression, however, is used in contradistinction to the word
'punitive'. It is not a punitive or penal provision but is in the nature
of preventive action or precautionary measure. The primary
object of preventive detention is not to punish a person for having
c done something but to intercept him before he does it. To put it
differently, it is not a penalty for past activities of an individual
but is intended to pre-empt the person from indulging in future
activities sought to be prohibited by a relevant law and with a
view to preventing him from doing harm in future.
o· 27. In Hardhan Saha v. State of WB., (1975) 3 SCC 198, ,..
I .
explaining the concept of preventive detention, the Constitution
Bench bf this Court, speaking through Ray, C.J. stated;
"The essential concept of preventive detention is that the
detention of a person is not to punish him for something
E he has done but to prevent him from doing it. The basis of
detention is the satisfaction of the executive of a
reasonable probability of the likelihood of the detenu acting
in a manner similar to his past acts and preventing him by
detention from doing the same. A criminal conviction on
F the other hand is for an act already done which can only
be possible by a trial and legal evidence. There is no
parallel between prosecution in a Court of law and a
detention order under the Act. One is a punitive action and
the other is a preventive act. In one case a person is
G punished to prove his guilt and the standard is proof
beyond reasonable doubt whereas in preventive detention
a· man is prevented from doing something which _it is
necessary for reasons mentioned in Section 3 of the Act
to prevent".
.,
H
STATE OF MAHARASHTRA & ORS. v. BHAURAO 987
PUNJABRAO GAWANDE [C.K. THAKKER, J.]

~
28. In another leading decision in Khudiram Das v. State A
~
of WB., (1975) 2 SCR 832, this Court stated;
"The power of detention is clearly a preventive measure.
It does not partake in any manner of the nature of
punishment. It is taken by way of precaution to prevent
mischief to the community, Since every preventive measure B
.,._ ._ is based on the principle that a person should be prevented
from doing something which, if left free and unfettered, it
is reasonably probable he would do, it must necessarily·
proceed in all cases, to some extent, on suspicion or
anticipation as distinct from proof. Hatanjali Sastri, C.J., c
pointed out in State of Madras v. V.G. Row A.l.R. 1952 SC
196 : 1952 SCR 597 that preventive detention is "largely
precautionary and based on suspicion" and to these
observations may be added the following words uttered
•"( by the learned Chief Justice in that case with reference to D
the observations of Lord Finlay in Rex v. Halliday, 1917
AC 260 namely, that "the court was the least appropriate
tribunal to investigate into circumstances of suspicion on
which such anticipatory action must be largely based".
This being the nature of the proceeding, it is impossible E
to conceive how it can possibly be regarded as capable
of objective assessment. The matters which have to be
considered by the detaining authority are whether the
person concerned, haying regard to his past conduct
... judged in the light of the surrounqing circumstances and F
other relevant material, would be likely to act in a prejudicial
~
manner as contemplated in any of sub-clauses (i), (ii) and
(iii) of Clause (1) of Sub-section (1) of Section 3, and if so,
whether it is necessary to detain him with a view to
preventing him from so acting. These are not matters
G

..
susceptible of objective determination and they could not
be intended to be judged by objective standards. They
are essentially matters which have to be administratively
•
determined for the purpose of taking administrative action.
Their determination is, therefore, deliberately and
H
988 SUPREME COURT REPORTS [2008] 3 S.C.R.

A advisedly left by the legislature to the subjective satisfaction
of the detaining authority which by reason of its special
position, experience and expertise would be best fitted to
• f

decide them. It must in the circumstances be held that the
subjective satisfaction of the detaining authority as regards
B these matters constitutes the foundation for the exercise
of the power of detention and the Court cannot be invited
to consider the propriety or sufficiency of the grounds on
which the satisfaction of the detaining authority is based.
The Court cannot, on a review of the grounds, substitute
. ""'

c its own opinion for that of the authority, for what is made
condition precedent to the exercise of the power of
detention is not an objective determination of the necessity
of detention for a specified purpose but the subjective
opinion of the detaining authority, and if a subjective
opinion is formed by the detaining authority as regards
D
the necessity of detention for a specified purpose, the
condition of exercise of the power of detention would be
,,•
fulfilled. This would clearly show that the power of
detention is not a quasi-judicial power''.

E (emphasis supplied)
29. Recently, in Naresh Kumar Goyal v. Union of India,
(2005) 8 SCC 276, the Court said;
"It is trite law that an order of detention is not a curative or
F reformative or punitive action, but a preventive action,
avowed object of which being to prevent the anti-social
and subversive elements from imperiling the welfare of ...
-
the country or the security of the nation or from disturbing
the public tranq1,1ility or from indulging in smuggling activities
or from engaging in illicit traffic in narcotic drugs and
G
psychotropic substances etc. Preventive detention is

H
devised to afford protection to society. The authorities on
the subject have consistently taken the view that preventive
detention is devised to afford protection to society. The
object is not to punish a man for having done something
. ~
STATE OF MAHARASHTRA & ORS. v. BHAURAO 989
PUNJABRAO GAWANDE [C.K. THAKKER, J.]

,.._ but to intercept before he does it, and to prevent him from A
~ doing so. It, therefore, becomes imperative on the part of
the detaining authority as well as the executing authority to
be very vigilant and keep their eyes skinned but not to turn
a blind eye in securing the detenue and executing the
detention order because any indifferent attitude on the B
part of the detaining authority or executing authority will
·~ defeat the very purpose of preventive action and turn the
detention order as a dead letter and frustrate the entire
proceedings. Inordinate delay, for which no adequate
explanation is furnished, led to the assumption that the c
live and proximate link between the grounds of detention
and the purpose of detention is snapped". [See : P.U.
/qbalv. Union of/ndia and Ors., (1992) 1SCC434; Ashok
Kumar v. Delhi Administration, (1982) 2 SCC 403 and
Bhawar/a/ Ganeshmalji v. State of Tami/nadu, (1979) 1
D
•
~
sec 465] .
PREVENTIVE DETENTION : NECESSARY EVIL
30. Liberty of an individual has to be subordinated, within
reasonable bounds, to the good of the people. The framers of
the Constitution were conscious of the practical need of E
preventive detention with a view to striking a just and delicate
balance between need and necessity to preserve individual
liberty and personal freedom on the one hand and security and
safety of the country and interest of the society on the other hand.
" Security of State, maintenance of public order and services F
.. essential to the community, prevention of smuggling and black
marketing activities, etc. demand effective safeguards in the
larger interests of sustenance of a peaceful democratic way of
life. In considering and interpreting preventive detention laws,
courts ought to show greatest concern and solitude in upholding G
and safeguarding the Fundamental Right of liberty of the citizen,
however, without forgetting the historical background in which
'. the necessity-an unhappy necessity-was felt by the makers
of the Constitution in incorporating provisions of preventive
detention in the Constitution itself. While no doubt it is the duty H
990 SUPREME COURT REPORTS [2008] 3 S.C.R.

A of the court to safeguard against any encroachment on the life
and liberty of individuals, at the same time the authorities who
have the responsibility to discharge the functions vested in them
under the law of the country should not be impeded or interfered
with without justification [vide A. K. Roy v. Union of India; Bhut
B Nath v. State of West Bengal, (1974) 3 SCR 315; State ofWB.
v. Ashok Dey, (1972) 2 SCR 434; ADM Jabalpur v. Shirakant
Shukla, 1976 Supp SCR 132].
SUBJECTIVE SATISFACTION : SCOPE OF JUDICIAL
REVIEW
c
31. Subjective satisfaction being a condition precedent
for the exercise of the power of preventive detention conferred
on the executive, the Court can always examine whether the
requisite satisfaction is arrived at by the authority; if it is not, the
D condition precedent to the exercise of the power would not be
fulfilled and the exercise of the power would be bad.
32. A Court cannot go into correctness or otherwise of the
facts stated or allegations levelled in the grounds in support of
detention. A Court of Law is 'the last appropriate tribunal to
E investigate into circumstances of suspicion on which such
anticipatory action must be largely based.'
33. That, however, does not mean that the subjective
satisfaction of Detaining Authority is wholly immune from judicial
reviewability. By judicial decisions, courts have carved out
F areas, though limited, within which the validity of subjective
satisfaction can be tested judicially.
GROUNDS OF CHALLENGE
34. An order of detention can be challenged on certain
G grounds, such as, the order is not passed by the competent
authority, condition precedent for the exercise of power does
not exist; subjective satisfaction arrived at by the Detaining
Authority is irrational, the order is ma/a fide; there is non- ~ 1
application of mind on the part of the Detaining Authority in
H passing the order; the grounds are, or one of the grounds is,
STATE OF MAHARASHTRA & ORS. v. BHAURAO 991
PUNJABRAO GAWANDE [C.K. THAKKER, J.]

+- vague, indefinite, irrelevant, extraneous,· non-existent or stale; A
' the order is belated; the person against whom an order is
passed is already in jail; the order is punitive in nature; the order
is not approved by State/Central Government as required by
law; failure to refer the case of the detenu to the Board
constituted under the statute; the order was quashed/revoked B
and again a fresh order of detention was made without new
"' 1:- facts, etc.
CHALLENGE TO DETENTION-ORDER PRIOR TO
EXECUTION
c
35. A writ of habeas corpus may be prayed in case of
actual detention or imprisonment ofa person if it is illegal or
unconstitutional. But ifa person is not actually detained, obviously
a writ of habeas corpus would not lie. A question, however, may
arise whether in such an eventuality, no remedy at all is available
0
• to an aggrieved person against whom an order of detention
~ has been made and such order is still to be executed. In other
words, whether actual detention of a person against whom an
order of detention is made is sine qua non or condition precedent
for approaching a Court of Law.
E
36. On this question, our attention has been invited by the
learned counsel for both the sides to several decisions of this
Court. Having gone through those decisions, we are of the view
that normally and as a general rule, an order of detention can
• be challenged by the detenu after such order as also the grounds F
of detention have been received by him and the order is
1
executed. In exceptional cases, however, a High Court or this
Court may exercise extraordinary powers to protect a person
against an illegal invasion of his right to freedom by protecting
him while still he is free by issuing an appropriate writ, direction G
or order including a )Nrit in the nature of mandamus questioning
an order of detention and restraining the authorities from
interfering with the right of liberty of an individual against whom
1
"' such order is made.
37. A direct question arose before this Court in Kiran H
992 SUPREME COURT REPORTS [2008] 3 S.C.R.

A Pasha v. Government of A.P, (1990) 1 SCC 328. In that case,
the petitioner filed a writ petition in the High Court of Andhra ~ ,
Pradesh under Article 226 of the Constitution restraining the
respondents from making an order of detention against him. A
Single Judge of the High Court granted interim relief against
B taking the petitioner in custody but the Division Bench held that
the order of detention was already made even prior to filing of
the petition, the petitioner was taken in custody and the petition ~ -c
had become infructuous. According to the Division Bench, the
normal rule was that the petitioner should first surrender to
c custody and then to move for a writ of habeas corpus. The
aggrieved petitioner approached this Court. An important
question before this Court was whether a writ petition for
protection of a Fundamental Right being threatened or in
imminent danger was maintainable. Following K.K. Kochuni v.
D State of Madras, 1959 Supp (2) SCR 316 and approving
observations of the High Court of Bombay in Jayantilal v. State •
of Maharashtra, (1981) 83 Born LR 190 as also of the Full Bench '"
of the High Court of Gujarat in Ved Prakash v. State of Gujarat,
AIR 1987 Guj 253, this Court observed:

E "When a right is so guaranteed, it has to be understood in
relation to its orbit and its infringement. Conferring the
right to life and liberty imposes a corresponding duty on
the rest of the society, including the State, to observe that
right, that is to say, not to act or do anything which would
F amount to infringement of that right, except in accordance ,.
with the procedure prescribed by law. In other words,
conferring the right on a citizen involves the compulsion
on the rest of the society, including the State, not to infringe
that right. The question is at what stage the right can be
enforced? Does a citizen have to wait till the right is
G
infringed? Is there no way of enforcement of the right before
it is actually infringed? Can the obligation or compulsion
on the part of the State to observe the right be made
effective only after the right is violated or in other words
can there be enforcement of a right to life and personal
H
STATE OF MAHARASHTRA & ORS. v. ·BHAURAO 993
PUNJABRAO GAWANDE [C.K. THAKKER, J.]

liberty before it is actually infringed? What remedy will be A
~
t- left to a person when his right to life is violated? When a
right is yet to be violated, but is threatened with violation
can the citizen move the court for protection of the Jig ht?
The protection of the right is to be distinguished from its
restoration or remedy after violation. When right to personal 8
liberty is guaranteed and the rest of the society, including
-~
t the State, is compelled or obligated not to violate that
right, and if someone has threatened to violate it or its
violation is imminent, and the person whose right is so
threatened or its violation so imminent resorts to Article c
226 of the Constitution, could not the court protect
observance of his right by restraining those who threatened
to violate it until the court examines the legality of the action?
Resort to Article 226 after the right to personal liberty is
already violated is different from the pre-violation
D
protection. Post-violation resort to Article 226 is for remedy
~
.. against violation and for restoration of the right, while pre-
violation protection is by compelling observance of the
obligation or compulsion under law not to infringe the right
by all those who are so obligated or compelled. To
surrender and apply for a writ of habeas corpus is a post- E
violation remedy for restoration of the right which is not the
same as restraining potential violators in case of
threatened violation of the right. The question may arise
ll'
what precisely may amount to threat or imminence of
violation,. Law surely cannot take action for internal thoughts F
but can act only after overt acts. If overt acts towards
" violation have already been done and the same.has come
to the knowledge of the person threatened with that
violation and he approaches the court under Article 226
giving sufficient particulars of proximate actions as would G
imminently lead to violation of right, should not the court
call upon those alleged to have taken those steps to appear
~ ~ and show cause why they should not be restrained from
violating that right? Instead of doing so would it be the
proper course to be adopted to tell the petitioner that the H
994 SUPREME COURT REPORTS [2008] 3 S.C.R.

A court cannot take any action towards preventive justice ~
until his right is actually violated whereafter alone he could f

petition for a writ of habeas corpus? In the instant case
when the writ petition was pending in court and the
appellant's right to personal liberty happened to be
B violated by taking him into custody in preventive detention,
though he was released after four days, but could be taken
into custody again, would it be proper for the court to .. ..-
reject the earlier writ petition and tell him that his petition
has become infructuous and he had no alternative but to
c surrender and then petition for a writ of habeas corpus?
The difference of the two situations, as we have seen,
have different legal significance. If a threatened
invasion of a right is removed by restraining the
potential violator from taking any steps towards
violation, the rights remain protected and the
D
compulsion against its violation is enforced. If the .... "
right has already been violated, what is left is the
remedy against such violation and for restoration of
the right'. (emphasis supplied)

E 38. Atka Subhash Gadia was indeed a leading decision
of this Court on the point. This Court in that case stated that if in
each and every case a detenu is permitted to challenge an order
of detention and seek stay of the operation of the order before
execution, "the very purpose of the order and of the law under
F which it is made will be frustrated since such orders are in "
operation only for a limited period".
;..

39. The Court, after considering several cases, observed
that with a view to prevent possible abuse of 'draconian
measure' of preventive detention, the Legislature had taken care
G to provide various salutary safeguards such as (i) obligation to
furnish to the detenu the grounds of detention; (ii) right to make
representation against such action; (iii) constitution of Advisory
Board consisting of persons who are or have been qualified to ~ f

be appointed as Judges of the High Court; (iv) reference of the
H case of the detenu to the Advisory Board; (v) hearing of the
STATE OF MAHARASHTRA & ORS. v. BHAURAO 995
. PUNJABRAO GAWANDE [C.K. THAKKER, J.]

f detenu by the Advisory Board in person; (vi) obligation of the A
~
Government to revoke detention order if the Advisory Board so
opines; (vii) maximum period for which a person can be
detained; (viii) revocation of detention order by the Government
on the representation by the detenu, etc.
40. The Court then considered the point as to denial of a 8
t right to the proposed detenu to challenge the order of detention
before the execution of order and observed:
"As regards his last contention, viz., that to deny a right to
the proposed detenu to challenge the order of detention c
and the grounds on which it is made before he is taken in
custody is to deny him the remedy of judicial review of the
impugned order which right is a part of the basic structure
of the Constitution, we find that this argument is also not
well-merited based as it is on absolute assumptions.
D
Firstly, as pointed out by the authorities discussed above,
there is a difference between the existence of power and
its exercise. Neither the Constitution including the
provisions of Article 22 thereof nor the Act in question
places any restriction on the powers of the High Court and
this Court to review judicially the order of detention. The E
powers under Articles 226 and 32 are wide, and a~e
untrammelled by any external restrictions, and can reach
any executive order resulting in civil on criminal
consequences. However, the Courts have over the years
evolved certain self-restraints for exercising these powers. F
They have done so in the interests of the administration of
justice and for better and more efficient and informed
exercise of the said powers. These self-imposed restraints
are not confined to the review of the orders passed under
detention law only. They extend to the orders passed and G
decisions made under all laws. It is in pursuance of this
self-evolved judicial policy and in conformity with the self-
\ ' imposed internal restrictions that the Courts insist that the
aggrieved person first allow the due operation and
implementation of the concerned law and exhaust the H
996 SUPREME COURT REPORTS (2008] 3 S.C.R.

A remedies provided by it before approaching the High Court t
(
and this Court to invoke their discretionary, extraordinary,
and equitable jurisdiction under Articles 226 and 32
respectively. That jurisdiction by its very nature is to be
used sparingly and in circumstances where no other
B efficacious remedy is available. We have while discussing
the relevant authorities earlier dealt in detail with the ~-. "
circumstances under which these extraordinary powers
are used and are declined to be used by the courts. To
accept Shri Jain's present contention would mean that the
c courts should disregard all these time-honoured and well-
tested judicial self-restraints and norms and exercise their
said powers, in every case before the detention order is
executed. Secondly, as has been rightly pointed out by
Shri Sibbal for the appellants, as far as detention orders
are concerned if in every case a detenu is permitted to
D
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
E 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 ..
F 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
G it is sought to be executed against a wrong person, (iii)
that it is passed for a wrong purpose, (iv) that it is passed
on vague, extraneous and irrelevant grounds or (v) that the
I f
authority which passed it had no authority to do so. The
refusal by the courts to use their extraordinary power of
H judicial review to interfere with the detention orders prior
STATE OF MAHARASHTRA & ORS. v. BHAURAO 997.
PUNJABRAO GAWANDE [C.K. THAKKER, J.]
t- to their execution on any other grounds does not amount A
~

to the abandonment of the said power or to their denial to
the proposed detenu, but prevents their abuse and the
perversion of the law in question".
(emphasis supplied)

- ~
41. The above principles have been reiterated in
subsequent cases decided by this Court.

42. The learned counsel for the detenu urged that on the
B

facts and in the circumstances of the case, the High Court was
right in holding that exception (iii) in Alka Subhash Gadia got c
attracted inasmuch the order was passed for a 'wrong purpose'.

43. We must concede our inability to uphold the above
contention. We have been taken to the judgment of the High
Court impugned in the present appeal. So far as the authority of
•' the Commissioner of Police is concerned, the High Court was D
satisfied that the order was passed by the authority competent
to exercise the power. It was also clear that the order was
passed 'under the Act' since the Detaining Authority was
satisfied that the detention of the writ-petitioner was necessary
'with a view to preventing him from acting in any manner E
prejudicial to the maintenance of supplies of essential
commodities to the community' i.e. kerosene. The grounds, in
our opinion, cannot be said to be vague, extraneous irrelevant
or non-existent. (In fact, the detenu absconded and grounds
could not be served). It is not even alleged that the order is sought F
to be executed against a wrong person.

44. According to the High Court, however, the order was
passed for a 'wrong purpose'. It was contended before the High
Court on behalf of the detenu that certain offences had been
registered against the detenu and they were under investigation. G
The report of the Chemical Analyzer was not received and yet
I. ; the Detaining Authority took into account those cases. It was
further submitted that offences were registered against the
detenu in July, 2003, September, 2005 and May, 2006 and no
preventive action was thought necessary to be taken by the H
998 SUPREME COURT REPORTS [2008] 3 S,C.R

A authority at any stage. It was when the detenu was arrested in 1
#
2006 and a complaint was made against 'custodial violence'
meted out to him by police authorities while he was in custody
that with a view to save the skin of erring police officials that an
illegal order of detention was passed. Thus, it was made for
B 'wrong purpose' and not with a view to preventing the writ
petitioner from indulging in black marketing of kerosene. The j -
High Court found 'considerable force' in the submission. The
High Court, with respect, went wrong in observing that once a
detenu had made allegations against the police atrocities and
c custodial violence, the Detaining Authority ought to have waited
till the inquiry was conducted and report submitted.
45. The Court observed;
"We find considerable force in this submission. A careful
perusal of the events that followed the registration of Crime
D
No.3022/2006 at P.S. Wadi (Nagpur) indicates that the •
petitioner made allegations against Respondent No. 3
about custodial violence immediately on his release. The
said complaint dated 20.7.2006 was addressed to
Respondent No.2. This complaint was forwarded by
E Respondent No.2 to DCP-1 Nagpur on 26.7.2006 for
necessary enquiry and action. A copy of the communication
26. 7 .2006 was also forwarded to the petitioner.
Immediately on the next day i.e. on 27.7.2006 detention
order was passed by Respondent No. 2 even before any
F enquiry could be made into complairt made by the
petitioner against Respondent No. 3. The detaining '
authority should have at least waited till the enquiry into
the complaint made by the petitioner was initiated and
completed and the result thereof either in the positive or
G in the negative. Instead of waiting for that, the detaining
authority immediately proceeded to pass order of detention
against the petitioner which indicates that even without
• J
subjective satisfaction of the detaining authority hastily
passed the order of detention for wrong purpose. This
H clearly shows that the detention order against the petitioner
STATE OF MAHARASHTRA & ORS. v. BHAURAO 999
PUNJABRAO GAWANDE [C.K. THAKKER, J.]
t-
) was passed for a wrong purpose and on this count the A
same deserves to be quashed and set aside".
46. The High Court again went wrong in holding that two
parallel and simultaneous proceedings were not permissible in
law. The High Court, relying on Biram Chand v. State of UP &
B
.. ~
Ors., (1974) 4 SCC 573, stated;
"A perusal of the grounds of detention shows that Crime
NO. 76/2006 of P.S. Mouda, District Nagpur was taken
into consideration by the detaining authority for its
subjective satisfaction. Now, in case the petitioner wants c
to make representation to the detaining authority against
the order of detention he is required to disclose his defence
which may cause prejudice to the petitioner in defending
the criminal prosecution. In Biram Chand v. State of Uttar
'~ Pradesh & Ors., AIR 1974 SC 1161, it has been held that
D
if the authority concerned makes an order of detention
under the Act and also prosecutes him in criminal case on
self-same facts, the detaining authority cannot take
recourse to two parallel and simultaneous proceedings
nor can take re-course to a ground which is the subject
matter of a criminal trial. Thus on this ground also the E
impugned order of detention cannot be sustained".
47. Unfortunately, the attention of the High Court was not
~
invited to Hardhan Saha, wherein the Constitution Bench did
not approve the law laid down by this Court in Biram Chand. F
Referring to larger Bench decisions, the Court stated;
"Article 14 is inapplicable because preventive detention
and prosecution are not synonymous. The purposes are
different. The authorities are different. The nature of
proceedings is different. In a prosecution an accused is G
sought to be punished for a past act. In preventive
'{ detention, the past act is merely the material for inference
about the future course of probable conduct on the part of
the detenu.
H
1000 SUPREME COURT REPORTS (2008] 3 S.C.R.

~
A The recent decisions of this Court on this subject are (

many. The decisions in Borjahan Gorey v. The State of
West Bengal reported in (1972) 2 SCC 550, Ashim Kumar
Ray v. State of West Bengal reported in (1973) 4 SCC 76,
Abdul Aziz v. The Distt. Magistrate, Burdwan and Ors.
B reported in (1973) 1 SCC 301 and Oebu Mahto v. The
State of West Bengal reported in (1974) 4 SCC 135
correctly lay down the principles to be followed as to
..,
whether a detention order is valid or not. The decision in
Biram Chand v. State of Uttar Pradesh and Ors.
c reported in (1974) 4 SCC 573 which is a Division Bench
decision of two learned Judges is contrary to the other
Bench decisions consisting in each case of three
learned Judges. The principles which can be broadly
stated are these. First merely because a detenu is liable
D
to be tried in a criminal court for the commission of a •
criminal offence or to be proceeded against for preventing
him from committing offences dealt with in Chapter VIII of
the CrPC would not by itself debar the Government from
taking action for his detention under the Act. Second, the
fact that the Police arrests a person and later on enlarges
E him on bail and initiates steps to prosecute him under the
CrPC and even lodges a first information report may be
no bar against the District Magistrate issuing an order
under the preventive detention. Third, where the concerned
person is actually in jail custody at the time when an order "'
F 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 as to the likelihood of such a person
indulging in activities which would jeopardise the security
G of the State or the public order. Fourth, the mere
circumstance that a detention order is passed during the
pendency of the prosecution will not violate the order. Fifth,
' J
the order of detention is a precautionary measure. It is
based on a reasonable prognosis of the future behavior
H of a person based on his past conduct in the light of the
STATE OF MAHARASHTRA & ORS. v. BHAURAO 1001
PUNJABRAO GAWANDE [C.K. THAKKER, J.]

surrounding circumstances". A
~t (emphasis supplied)
48. Considering the facts on record in their entirety, it is
clear that many cases had been filed against the detenu under
the 1955 Act. It was alleged that the writ petitioner was indulging
in illegal activities of black marketing of kerosene which was an 8
~ ' essential commodity. Those cases had been registered in 2002,
2003, 2005 and 2006. Thus, the action was taken on the basis
of past conduct of the detenu having reasonable prognosis of
future behaviour and there was 'live link' between the activities
of the detenu and the action of preventive detention to reach c
subjective satisfaction by the Detaining Authority. It has come
on record that the detenu was called upon to execute a bond for
good behaviour under Sections 110 and 111 of the Code of
Criminal Procedure, 1973. It is, therefore, clear that the
authorities had taken steps under the relevant law. But even D
otherwise, in our opinion, such questions may become relevant
and can be considered after the order of detention is executed.
49. Similarly, if the detenu was ill-treated when he was in
custody in connection with any case registered against him
under the 1955 Act, or there was custodial violence, it would not E
. affect detention of the writ-petitioner. Whether there was such
custodial violence and whether police officers had abused their
position can indeed be gone into by a competent authority or
• by a Court of law. That circumstance, however, will not make the
order of detention invalid or for a 'wrong purpose'. Externment F
~ proceedings initiated against the detenu under Section 59 of
the Bombay Police Act, 1951 also would not make the action
assailable. In our considered opinion, therefore, this was not a

J case in which interference was warranted at pre-execution
stage. G
50. In this connection, it may be profitable if we refer to a
• i decision of this Court in Subhash Muljimal Gandhi v. L.
Himing/iana & Anr., (1994) 6 SCC 14. There, an order of
detention was challenged by the detenu at pre~execution stage.
H
1002 SUPREME COURT REPORTS [2008] 3 S.C.R.

A It was contended by the detenu that the contingencies noted in
Atka Subhash Gadia were illustrative and not exhaustive. It t ~
was submitted that there might well be other contingencies where
such order could be questioned at pre-execution stage. In that
case also, it was alleged that the detenu was harassed,
B humiliated and beaten by authorities and the case called for
grant of relief before execution of order of detention.
f ~

51. Negativing the contention and referring to Atka
Subhash Gadia and N.K. Bapna v. Union of India, (1992) 3
SCC 512, the Court said;
c
"The above principles laid down in Alka Subhash Gadia
have been quoted with approval by another three-Judge
Bench in N.K. Bapna v. Union of India ((1992) 3 SCC 512.
Bound as we are by the above judgments, we must hold
that the other contingencies, if any, must be of the same
D
species as of the five contingencies referred to therein.
Coming now to Mr. Jethmalani's submission, that the
detention order was passed 'for a wrong purpose', namely,
to harass and humiliate the appellant by concocting a false
case of smuggling, based primarily on a confession
E obtained from him after subjecting to him to assault, illegal
detention and extortion we find that the detaining authority
has denied the allegations of assault and extortion.
Needless to say these are disputed questions of fact,
which we cannot entertain much less delve into or decide 'f'

F upon. In any case, the said fact, even if true cannot
vitiate the order of detention". (emphasis supplied)
52. We may also refer to one more case of ti .is Court in
State of Bihar v. Ram Balak Singh, (1966) 3 SCR 344. The
question which arose before this Court there related to grant of
G
bail/parole in a petition filed by a detenu for a writ of habeas
corpus. The Court observed that there is vital difference
between 'preventive detention' and 'punitive detention'.
Preventive detention is a precautionary measure and is intended
to pre-empt a person from indulging in illegal or anti-social
H
STATE OF MAHARASHTRA & ORS. v. BHAURAO 1003
PUNJABRAO GAWANDE [C.K. THAKKER,
I
J.]

t- activities in order to safeguard the defence of India, public safety, A
~
maintenance of public order, maintenance of supplies and
services essential to the life· of the community, prevention of
smuggling activities, etc. Therefore, the jurisdiction of the court
to grant relief to the detenu in such proceedings is indeed
narrow and very much limited. Bail cannot be granted as a 8
matter of common practice on considerations generally
~ ~
applicable to cases of punitive detention. Therefore, whenever
the Court is of the view that prima facie the allegations
made in the writ petition disclose a serious defect in the
order of detention, the wiser and the more sensible and
reasonable course to adopt would invariably be to expedite
c
the hearing of the writ petition and deal with the merits
without any delay. (emphasis supplied}
53. The Court, however, held that it cannot be contended
• as a proposition of law that a writ Court has no jurisdiction to D
+ make an interim order giving the detenu the relief which the Court
would be entitled to grant at the end of the proceedings. If the
Court has jurisdiction to give the main relief to the detenu at the
end of the proceedings, on principle and in theory, it is not easy
to understand why the Court cannot give interim relief to the
E
detenu pending the final disposal of his writ petition. The interim
relief which can be granted in habeas corpus proceedings must
no doubt be in aid of, and auxiliary to, the main relief. It cannot
be urged that releasing a detenu on bail is not in aid of, or
~
auxiliary to the main relief for which a claim is made on his behalf
in the writ petition. F
J
54. The Court then concluded:
"In dealing with writ petitions of this character, the Court
has naturally to bear in mind the object which is intended
to be served by the orders of detention. It is no doubt true G
that a detenu is detained without a trial; and so, the courts
. (
would inevitably be anxious to protect the individual liberty
of the citizen on grounds which are justiciable and within
the limits of their jurisdiction. But in upholding the claim for
individual liberty within the limits permitted by law, it would H
1004 SUPREME COURT REPORTS [2008] 3 S.C.R.

A be unwise to ignore the object which the orders of detention
are intended to serve. An unwise decision granting bail to
a party may lead to consequences which are prejudicial
to the interests of the community at large; and that is a
factor which must be duly weighed by the High Court before
B it decides to grant bail to a detenu in such proceedings.
We are free to confess that we have not come across I ,..
cases where bail has been granted in habeas corpus
proceedings directed against orders of detention
tmder R. 30 of the Rules, and we apprehend that the
c reluctance of the courts to pass orders of bail in such
proceedings is obviously based on the fact that they
are fully conscious of the difficulties - legal and
constitutional, and of the other risks involved in
making such orders."
(emphasis supplied)
D •
55. The learned counsel for the respondent referred to +
Rajinder Arora v. Union of India & Ors., (2006) 4 SCC 796. On
the facts of the case, the Court held that the case of the appellant
was covered by exceptions (iii) and (iv) of Alka Subhash Gadia
E and the relief was granted.
56. Likewise, in K. S. Mangamuthu v. State of Tamil Nadu
& Ors., (2006) 4 sec 792, there was non-placement of relevant
material before the Detaining Authority and it was held by this
Court that the order of detention was vitiated.
F
57. The Counsel relied upon certain other decisions
wherein the order was quashed and set aside. There, however,
the order was executed and the detenu surrendered. As already
held by us, at the second stage, i.e. after the order of detention
G is executed and the person is served with the grounds of
detert1on, he can challenge such order and Court will decide
the legality or otherwise of the action.
58. From the foregoing discussion, in our judgment, the
law appears to be fairly well-settled and it is this. As a general
H rule. an order of detention passed by a Detaining Authority under
STATE OF MAHARASHTRA & ORS. v. BHAURAO 1005
PUNJABRAO GAWANDE [C.K. THAKKER, J.]

the relevant 'preventive detention' law cannot be set aside by a A
Writ Court at the pre-execution or pre-arrest stage unless the
Court is satisfied that there are exceptional circumstances
specified in Alka Subhash Gadia. The Court must be conscious
and mindful of the fact that this is a 'suspicious jurisdiction' i.e.
jurisdiction based on suspicion and an action is taken 'with a B
view to preventing' a person from acting in any manner prejudicial
to certain activities enumerated in the relevant detention law.
Interference by a Court of Law at that stage must be an
exception rather than a rule and such an exercise can be
undertaken by a Writ Court with extreme care, caution and c
circumspection. A detenu cannot ordinarily seek a writ of
mandamus if he does not surrender and is not served with an
order of detention and the grounds in support of such order.

59. The case on hand, in our considered opinion, does
not fall within the category of exceptional cases and the High D
•+ Court committed an error of law in setting aside the order of
detention at the pre-execution and pre-arrest stage. The said
order, therefore, deserves to be set aside and is hereby set
aside. It is open to the authorities to execute the order of
detention. It is equally open to the detenu to challenge the legality E
thereof on all available grounds.
60. Before parting with the matter, we may clarify that all
observations made by us in this judgment are only for the
~
purpose of deciding the legality of the order passed by the High
Court and impugned in the present appeal. We may not be F
.I. understood to have expressed any opinion one way or the other
on the allegations and counter-allegations by the parties. It is
also made clear that if after the execution of the order, the action
is challenged by the detenu, the Court will decide the case strictly
in accordance with law on its own merits without being inhibited G
by any observations made either in the decision of the High
Court or in the present judgment.
(
61. The appeal is accordingly allowed.
N.J. Appeal allowed. H