PAWAN BHARTIYA Vs. UNION OF INDIA

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution of India,1950 ( in short, 'the Constitution ) legality, validity and vires of the order dated 30.07.1996 passed by respondent no.1 (Union of India through its Joint Secretary, Department of Revenue, Ministry of Finance) has been challenged. The said order was passed in exercise of power under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short, the Act' ) for detaining the petitioner. Prayer is for issuance of a writ in the nature of certiorari or any other appropriate writ or writs. setting aside the impugned order of detention dated 30.07.1996. Stand of the petitioner in essence is that such a prayer has to be accepted as:- a) there has been delay in execution of The order of detention, b) there was no consideration of several aspects. more particularly the fact that the duty for the alleged evasion ot which action was taken has already been paid. c) in some cases where payments have been made. the orders ot detention passed have been revoked. d) there lias no material to link the petitioner with illegal activities such as smuggling of goods.

(2.) A preliminary objection has been raised by the respondent stating that the certiorari for entertaining the, petition questioning legality of the order of detention before execution lias been laid down in many cases, and the petitioner has not made out a case for interference before execution of the detention order.

(3.) Before dealing with rival submissions, it would be appropriate to deal with the purpose and intent of pieventive detention. Prevenntive detention is an anticipatory measure and does not relate to an offence, while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It s resorted to when the Executive is convinced that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the law. The action of Executive in detaining a person being only precautionary, the matter has (necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct, the failure to conform to which should lead to detention. The satisfaction of the detaining authority, therefore, is a purely subjective affair. The detaining authority may act on any material and on merely afford basis tor a sufficiently strong suspicion to take action but may not satisfy the tests of legal proof on which alone a conviction for offence will be (enable. The compulsions of the primordial need to maintain order in society without which the enjoyment of all rights, includingthe right to personal liberty would lose all their meaning are the true jurisdictions for the laws of preventive detention. The pressures of the day in regard to the imperatives of the security of the State and of public order might, it is true requirethe sacrifice of the personal liberty oF individuals. Laws that provide for preventive detention posit that an individual's conduct prejudicial to the maintenance of public order or to the security of State or corroding financial base provides grounds for satisfaction for a reasonable prognostication of a possible future manifestations of similar propensities onthe part of the offender. Thus Jurisdiction has been called a Jurisdiction of suspicion, but the compulsions of the very preservation of the values of freedom of democratic society and of social order might compel a curtailment for individual liberty. "To, lose our country by a scrupulous adherence to the written law" said Thomas Jefferson "would be to losethe law itself, with life, liberty and all those who are enjoying with us, thus absurdly sacrificing the end to the needs." This, no doubt, is the theoretical jurisdiction for the law enabling preventive detention. But the actual manner of administration of the law. of preventive detention is of utmost importance. the law has to be justified by the genius of its administration so as to strikethe right balance between individual liberty onthe one hand and the needs of an orderly society on the other.