Holding

The High Court judgment was set aside as unsustainable and the question of returning the respondents to custody is to be decided by the Government within two months.

Summary

The case arose from a writ petition challenging a detention order dated 10 May 1993 issued under Section 3(1) of the COFEPOSA Act. The Punjab and Haryana High Court held that the order had become infructuous due to the lapse of time and restrained the respondents from enforcing it, while also leaving open the possibility of a fresh order. The Union appealed, contending that the High Court’s view was contradictory and that the court could not both declare the order infructuous and retain jurisdiction to issue a new order. The Supreme Court examined the scope of judicial review under Articles 226 and 32, reiterating that courts may intervene at the pre‑execution stage only when the order is illegal, mala‑fide or violative of natural‑justice principles, and that a detenu must surrender to challenge the order. Relying on earlier precedents, the Court held that the High Court judgment was unsustainable, set it aside, and directed that the decision on whether to take the respondents back into custody be made by the Government within two months. Consequently, the appeal was allowed.

Issues considered

Whether a detention order that has become infructuous due to lapse of time can be set aside by a High Court.
Whether the court can simultaneously declare the order infructuous and retain the power to pass a fresh order.
Whether the respondents can be taken back into custody after the order is declared infructuous.
Scope of judicial review under Articles 226 and 32 of the Constitution for pre‑execution detention orders.
Whether a detenu must surrender before challenging a detention order.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1)
Constitution of Indias. Article 22(5), s. Article 226, s. Article 32

Subjects

detention orderCOFEPOSApre‑execution judicial reviewArticles 226 and 32infructuous orderpreventive detentionSupreme Court

Judgment

608 SUPREME COURT REPORTS [2008] 16 S. C.R.

·A *Additional Secretary:1to· the Govt. of India and Ors. v. t
Smt. Alka Subhash. Gadia and Anr. 1992 Supp (1) SCC 496;
Administration of NCT Delhi v. Prem Singh 1995 Supp (4) ·{
SCC 252; Sayed Tahet Bawamiya v; Joint Secretary 2000 (8)
SCC 630; Union of India and Ors. v. Par~smal Rampuria 1998
B (8) SCC 402; Sunil Fulchand Shah v. Union of India and Ors.
2000 (3) SCC 409; Hare Ram Pandey v. State of Bihar and
Ors. 2003 (10) JT 114; Union oflndia v. Amritlal Manchanda
and Ors. 2004 (3) sec 75 and Union of India and Ors. v. Vidya
Bagaria 2004 (5) sec 577, relied on.
c 1.2. The impugned judgment of the High Court is
clearly unsustainable and is set aside. The question is as
to whether itwou.ld be desirable to take the respondents f

back fo custody. Such a decision shall be taken by the t
Government .within two months. [Para 1O] [613-G]
D
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1870 of 2008

·From th~ final Judgment and Order dated 12.9.2005 of the
E High Court of Punjab and Haryana at Chandigarh in Crl. W.P.
No. 1185 of 2004. '

Gopal Subramaniam, A.S.G ... Ms. Aruna Gupta, B.K.
Prasad and P. Parmeswaran for the Appellants .

F
.. ~

Ravi Shankar Prasad, ChetanDayal, Nikhil Jain andAjay
· Pal for t~e Respondents.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted.
G
2. Ghallenge in this appeal is to the judgment of a learned
Sirigte'Judge of the Punjab andHaryana High Court allowing ...
..
. . . '. . . . , . . . . . t .. ., ' '. ~ .~ c •

ttie Writ Petition filed by the respondents. Prayer in the writ
petition was to quash the detention order dated '1o.5.1_993 .•
H Stand ofthewrit petitioners before the High Court was that a .
J
UNION OF INDIA AND ORS. v. ATAM PARKASH .A.ND 609
ANR. [DR. ARIJIT PASAYAT, J.]

. 1 petition.for preventing the respondents in the writ petition from A
enforcing the said order was disposed of by order dated
19.7.2002 in Criminlll Writ Petition No. 1408 of 1999. The
respondents in the writ petition opposed the same taking the
stand that in some other cases the High Court had taken the,
view that once the order had become infructuous by lapse of B
time, a different yardstick should not have been applied. In the
'f
case at hand, the writ petition was, therefore, allowed with the
following observations:

"In view of the above, this petition is allowed and the
respondents are restrained from enforcing order dated c
10.5.1993. They will however be at liberty to pass any fresh ·.
\. order, if so required, and take appropriate action thereafter
in accordance with law."

3. Learned counsel for the appellants submitted that the D
judgment of the High Court is contrary in terms. If on one hand
it was held that the order dated 10.5.1993 had become
infructuous, there was no question of granting a liberty to pass
a afresh order. It is pointed out that for a considerable length
~ of time the order of stay was in operation. E
4. In Additional Secretary to the Govt. of India and Ors.
v. Smt. Alka Subhash Gadia and Anr. case ((1992 Supp (1)
sec 496), it was held that courts under Articles 226 and 32
of the Constitution of India, 1950 (in short the 'Constitution') can
interfere at the pre execution stage with the detention order only F
~
if they are satisfied that :

(i) the impugned order is not passed under the Act
-,
under which it is purported to have been passed;
I
~ G
(ii) it is sought to be executed against a wrong person;
-{
. (iii) it is passed for a wrong purpose;

(iv) it is passed on vague, extraneous and vexatious
grounds; or · H
I
~
1--

610 SUPREME COURT REPORTS [2008] 16 S.C.R.
.__
,_
(v) the authority which passed it had no authority to do -t
A .
so.

. 5 .. ·The position has been re-iterated in Administration of I

NCT Delhi v. Prem Singh (1995 Supp (4) SCC 252) .and ~
Sayed Taher Bawamiya v. Joint Secretary (2000 (8) SCC 630).
B i

6. The question whether the detenu or any one or:i his y l
behalf is entitled to challenge the detention order without the
detenu submitting or surrendering to it has been examined by
this Court on various occasions. One of the leading judgments r
c on the subject is Smt. Alka Subhash Gadia's case (supra) In ~

para 12 of the said judgment, it was observed by this Court as ',.._
under: !-

"12. This is not to say that the jurisdiction of the High
D Court and the Supreme Court under Articles 226 and 32 ):-
respectively has no role to play once the detention -
punitiv~ or preventive- is shown to have been made under
the Jaw.so made forthe purpose. This is.to point out the
limitations; which the High Court and the Supreme Court E
have to observe while exercising their respective i'
E
jurisdiction in such cases. These limitations are normal and
well known, and are self-imposed as a matter of prudence;
propriety, policy and practice and .~re observed while
dealing with cases under all laws. Though the Constitution
does not place any restriction on these powers, the judicial
F . decision have evolved them over a period of years taking
int9 .. 6onsicieration the nature of the legislation or of the
order or decision complained of, the need to balance the I
rights and.interests of the individual as against those of f
the. society, the. circumstances under which and the ~

G . perscms by whom the jurisdiction is invoked, the nature of
relief sought, etc. To \llustrate these l:mitations, (i) in the ~
exerci~e of their discretionary jurisdiction the High Court l
and the Supreme Court do not, as Courts of appeal or
revision, correct mere errors of law or of facts, {ii) the
H resort to the said jurisdiction is not permitted as an
UNION OF INDIA AND ORS. v. ATAM PARKASH AND 611
ANR. [DR. ARIJIT PASAYAT, J.]

alternative remedy for relief which may be obtained by suit A
or other mode prescribed by statute. Where it is open to
the aggrieved person to move another Tribunal or even itself
in another jurisdiction for obtaining redress in the manner
provided in the statute, the Court does not, by exercising
the writ jurisdiction, permit the machinery created by the B
statute to be by-passed; (iii) it does not generally enter
'f
upon the determination of questions which demand an
elaborate examination of evidence to establish the right to
enforce which the.writ is claimed; (iv) it does not interfere
on the merits with the determination of the issues made c
by the authority invested with statutory power, particularly
when they relate to matters calling for expertise, unless
there are-exceptional circumstances calling for judicial
intervention, such as, where the determination is ma/a fide
or is prompted by the extraneous considerations or is
D
_,;
made in contravention of the principles of natural justice
of any constitutional provision, (v) the Court may also
intervene where (a) the authority acting under the
concerned law does not have the requisite authority or the
order which is purported to have been passed under the
law is not warranted or is in breach of the provisions of
E
the concerned law or the person against whom the action
is taken is not the person against whom the order is
directed, or (b) when the authority has exceeded its power
or jurisdiction or has failed or refused to exercise
jurisdiction vested in it; or (c) where the authority has not F
applied its mind at all or has exercised its power
dishonestly or for an improper purpose; (vi) where the
Court cannot grant a final relief, the Court does not entertain
petition only for giving interim relief. If the Court is of
opinion, that there is no other convenient or efficacious G
...., 4 remedy open to the petitioner, it will proceed to investigate
the case on its merit and if the Court ·finds that there is an
infringement of the petitioner's legal rights, it will grant final
relief but will not dispose of the petition only by granting
interim relief (vii) where the satisfaction of the authority is H
~

'..
612 SUPREME COURT REPORTS [2008] 16 S.C.R.

A subjective, the Court intervenes when the authority has I-

acted under the dictates of another body or when the
conclusion is arrived at by the application of a wrong test
· or misconstruction of a statute or it is not based on material
· which is of a rationally probative value and relevant to the
B subject matter in respect of which the authority is to satisfy
itself. If again the satisfaction is arrived at by taking into
consideration material, which the authority properly could '1

not, or by omitting to consider matters, which it sought to
have, the Court interferes with the resultant order. (viii) In
c proper cases the Court also intervenes when some legal
·'
or fundamental right of the individual is seriously
threatened, though not actually invaded."

7. This Court's decision in Union of India and Ors. v.
P{Jrasmal Rampuria (1998 (8) sec 402) throws considerable
D light as to what would be the proper course for a person to
adopt when he seeks to challenge an order of detention on the
available grounds like delayed execution of detention order,
delay in consideration of the representation and the like. These
questions are really hypothetical in nature when the order of
E detention has not been executed at all and the detenu has
avoide~ service and incarceration and when challenge is
sought to be made at pre-execution stage. It was observed as
under: F
"In our view, a very unusual order seems to have been
F
passed in a pending appeal by the Division Bench of the ~ r
High Court. It is challenged by the Union of India in these
appeals. A detention order under Section 3(-1) of the
COFEPOSA Act was passed by the authorities on
13.9.1996 against the respondent. The respondent before
G surrendering 'filed a writ petition in the High Court on I
·23: 10.1996 and obtained an interim stay of the proposed · J-'
~ ...,,___
order: .which had remained un-served. The learned Single
Judge after hearing the parties· vacated the ad interim
relief: Thereafter, the respondent went in appeal.before the
H
•,

r-
UNION OF INDIA AND ORS. v. ATAM PARKASH AND 613
ANR. [DR. ARIJIT PASAYAT, J.]

... Division Bench and again obtained ad interim relief on A
1
10.1.1997 which was extended from time to time. The writ
appeal has not been still disposed of.
When the writ petition was filed, the respondent had
not surrendered. Under these circumstances, the proper
order which was required to be passed was to call upon B
the respondent first to surrender pursuant to the detention
l
order and then to have all his grievances examined on
'· merits after he had an opportunity to study the grounds of
detention and to make his representation against the said
grounds as required by Article 22(5) of the Constitution." c
8. In Sunil Fulchand Shah v. Union of India and Ors.
(2000 (3) SCC 409) a Constitution Bench of this Court
observed that a person may try to abscond and thereafter take
a stand that period for which detention was directed is over
D
and, therefore, order of detention is infructuous. It was clearly
held that the same plea even if raised deserved· to be rejected
as without substance. It should all the more be so when the
detenu stalled the service of the order and/or detention in
custody by obtaining orders of Court. In fact, in Sayed Taher's
case (supra) the fact position shows that 16 years had elapsed E
yet this Court rejected the plea that the order had become stale.
9. These aspects were once again highlighted in Hare
Ram Pandey v. State of Bihar and Ors. (2003 (10). JT 114),
Union of India v. Amritlal Manchanda and Ors. (2004 (3) SCC F
.... 75) and Union of India and Ors. v. Vidya Bagaria (2004 (5)
sec 577).
10. The impugned judgment of the High Court is clearly
unsustainable and is set aside. The question is as to whether
it would be desirable to take the respondents back to custody. G
Such a decision shall be taken by the Government within two

'
months.
"
11 . The appeal is allowed. ~

R.P. Appeal allowed. H
"