SUBHASH POPATLAL DAVE Vs. UNION OF INDIA

JUDGEMENT

(1.) Leave granted in the Special Leave Petitions. Transfer Petition (Crl.) Nos.38-39 are allowed.

(2.) The common thread which runs through these matters being heard together is the challenge thrown in each matter to detention orders passed either against the Petitioners themselves or the persons represented by them. The common question of law involved in these Appeals, Writ Petitions and Transfer Petitions is whether a detention order passed under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as "the COFEPOSA Act, 1974", could be challenged at the pre-execution stage only on any of the five exceptions carved out by this Court in Addl. Secretary, Govt. of India vs. Alka Subhash Gadia, 1992 Supp1 SCC 496, or whether such challenge could be maintained on other grounds as well. The matter had come up for hearing on the said question on several days when we had occasion to consider the decisions referred to by the learned Additional Solicitor General, Mr. P.P. Malhotra in Sayed Taher Bawamiya Vs. Joint Secretary, Government of India, 2000 8 SCC 630 and in the case of Union of India Vs. Atam Prakash & Anr., 2009 1 SCC 585, wherein it had been held that the grounds of challenge to a detention order at the pre- execution stage could only be confined to the five exceptions set out in Alka Subhash Gadia's case . After having considered all the said decisions and the submissions made on behalf of the respective parties and keeping in mind the fact that the most precious right of a citizen is his right to freedom, we were convinced that the right of a detenue to challenge a prevention detention order passed against him at the pre- execution stage on grounds other than those set out in paragraph 30 of the judgment in Alka Subhash Gadia's case required further examination.

(3.) Appearing for the Appellants and the Writ Petitioners, Mr. Mukul Rohatgi, learned Senior Advocate, submitted that the question as to whether the five exceptions mentioned in Alka Subhash Gadia's case were only illustrative and not exhaustive had already been considered in the common judgment dated 10th July, 2012, wherein it was also held that the law is not static, but dynamic. Mr. Rohatgi reiterated his earlier submission that if a citizen's right to freedom is to be interfered with in the public interest, such powers would have to be exercised with extra caution and not simply as an alternative to the ordinary laws of the land.