INDERJIT SINGH CHANI Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has challenged the detention order before even his arrest. According to the learned counsel appearing for the respondent-detaining authority the writ petition is not maintainable as neither the detention order has been served on the petitioner nor he has so far been arrested under the same. In support he relies upon two connected orders of a Division Bench of this court. The first is Aditya Kumar Bhandari v. Union of India & Ors. dated August27,1993 in Crl.Writ Petition No.374/93.The order runs as under :-

(2.) The learned counsel for the petitioner, however, contends that to insist that the person against whom the order is passed must first submit to the same and thereby lose his liberty, would amount to insisting upon an unreasonable condition and that even the Apex court has held that neither the Constitution nor the provisions of COFEPOSA place any restriction on the powers of the High Court under Article 226 to review judicially the order of detention even prior to its execution. In support, my attention has been drawn to The Additional Secretary to the Government of India and Ors vs. Smt. Alka Subhash Gadia and Am. [JT 1991(1) S.C. 549] and to yet another Division Bench judgment of this court in Subhash Chander vs. Union of lndia & Ors. 1991(l) Crimes 745.

(3.) One thing is certain, and I say so for I entertain no doubt about it, and it is that there is a difference between the existence of a power and its exercise. That there is power under Article 226 of the Constitution to review judicially the order of detention is beyond doubt. The question is with regard to its exercise. And, when we come to this, what we find is that such power has to be exercised only in rare cases and .that too on very limited grounds. What are those grounds? The Apex court throws light on the same in Smt. Alka Subhash Gadia's case (Supra). It says: