SHASHI GOYAL Vs. UOI

JUDGEMENT

(1.) THE Petitioner, Shashi Goyal, has filed this Petition for the annulment of the Detention Order bearing F. No. 673/07/2007-CUS-VIII dated 27. 12. 2007 issued by Ms. Rashida Hussain, Joint Secretary to the Government of India, in respect of her husband Shri Bhimendra Kumar Goyal. The Detention has been ordered "with a view to preventing him from smuggling goods in future". The Grounds of detention narrate inter alia that the Detenu was arrested on 0200 hours on 29. 10. 2007 under Section 104 of the Customs Act, 1962 and on production in the court of learned ACMM, Patiala House, New Delhi was lastly remanded to judicial custody till 28. 12. 2007. It appears that predicated on the impugned Order dated 27. 12. 2007 the Detenu was detained on that very day in Central Jail, Tihar, New delhi. Inasmuch as the Petitioner had been arrested on 29. 10. 2007 he would have been statutorily entitled to be enlarged on bail under Section 167 (2) of the code of Criminal Procedure, 1973 (Cr. PC) on the expiry of sixty days of his arrest since the maximum punishment awardable to him does not exceed seven years [reference can usefully be made to Raj Kumar Aggarwal -vs- Director General, central Excise, 147 (2008) DLT 1 (DB)]. Therefore, the date of the Detention order, that is, 27. 12. 2007 assumes obvious importance and significance. It has not been contested that but for the impugned Detention Order Shri B. K. Goyal would not have remained incarcerated for offences within the present contemplation. Suffice it to mention that in paragraph B (ii) of the Counter affidavit of the Respondents it has been asseverated that "the fact that the detenu was granted bail under Section 167 (2) of Cr. P. C. as mentioned by the petitioner was not in the knowledge of the Detaining Authority. It is denied that the detention order has been used as a device to scuttle the release of the detenu on bail as alleged. . . . . . The Detaining Authority has further shown her awareness and mentioned in the Grounds of Detention that the possibility of release of the detenu on bail in near future cannot be ruled out. This shows that the Detaining Authority was fully aware about the possibility of release of the detenu on bail in near future".

(2.) ARTICLE 21 of the Constitution of India enjoins that no person shall be deprived of his life or personal liberty except according to procedure established by law. Generally speaking, personal liberty can legitimately be curtailed, confined, restricted or impeded only if a person has been found guilty by a Court of law of the commission of an offence which is punishable by imprisonment. Preventive Detention is an inroad into the Fundamental Rights of a citizen. It is permissible by virtue of Article 22 (5) of the Constitution of india which prescribes that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

(3.) THE Supreme Court of India has zealously guarded against the abusive use of Preventive Detention. Their Lordships have observed that "however well-meaning the Government may be, detention power cannot be quietly used to subvert, supplant or to substitute the punitive law of the Penal Code. The immune expedient of throwing into a prison cell one whom the ordinary law would take care of, merely because it is irksome to undertake the inconvenience of proving guilt in Court is unfair abuse. To detain a person after a court has held the charge false is to expose oneself to the criticism of absence of due care and of rational material for subjective satisfaction. After all, the responsible officer, aware of the value of civil liberty even for undesirable persons, must make a credible prediction of the species of prejudicial activity in Section 3 (1) before shutting up a person. It may perilously hover around illegality, if a single act of theft or threat, for which a prosecution was launched but failed, is seized upon after, say, a year or so, for detaining the accused out of pique. The potential executive tendency to shy at Courts for prosecution of ordinary offences and to rely generously on the easier strategy of subjective satisfaction is a danger to the democratic way of life. The large number of habeas corpus petitions and the more or less stereotyped grounds of detention and inaction by way of prosecution, induce us to voice this deeper concern. Moreover, a criminal should not get away with it as an unconvicted detenu if the rule of law is a live force" (see Bhut Nath Mete v. State of W. B. , (1974) 1 SCC 645 ). The other dimension repeatedly emphasised by the Apex Court is that the draconian power of preventive detention can be resorted to only upon a strict adherence and compliance of procedural law. In Rajesh Gulati -vs-Govt. of NCT of Delhi, (2002) 7 SCC 129 their Lordships clarified that "preventive detention must be meticulously followed with substantively and procedurally by the detaining authority. The object of detention under the Act is not to punish but to prevent the commission of certain offences. Section 3 (1) of the Act allows the detention of a person only if the appropriate detaining authority is satisfied that with a view to preventing such person from carrying on any of the offensive activities enumerated therein, it is necessary to detain such person. The satisfaction of the detaining authority is not a subjective one based on the detaining authority's emotions, beliefs or prejudices. There must be a real likelihood of the person being able to indulge in such activities, the inference of such likelihood being drawn from objective data".