MAQSOOD YUSUF MERCHANT Vs. UOI THRU THE SECRETARY

JUDGEMENT

(1.) THE feature at the fulcrum of the friction before us pertains to the parameters within which the Writ Court can provide its protection to the petitioners at the pre-execution stage of preventive detention orders passed against them. The law on this subject was crystalized and enunciated in the decision of a Three-Judge Bench of Supreme Court in Addl. Secy. to the Govt. of india -vs- Alka Subhash Gadia, 1992 Supp (1) SCC 496 : JT 1991 (1) SC 549 which has been followed in almost all subsequent cases. The only exception that we have come across is Union of India -vs- Parasmal Rampuria, (1998) 8 SCC 402 in which their Lordships held that the Petitioner must surrender before he can be heard in his challenge to the legality of the Detention Order; significantly, gadia was not cited before their Lordships. In Sayed Taher Bawamiya -vs- Joint secretary to the Govt. of India, (2000) 8 SCC 630, which is a Three-Judge Bench decision, the five Gadia exceptions had been reiterated, namely, that courts would be empowered to interfere with detention orders at the pre-execution stage only if they are prima facie satisfied - (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds, or (v) that the authority which passed it had no authority to do so. Their Lordships categorically rejected the argument that these five exceptions are not exhaustive. Both these cases were taken note of in Union of India -vs-Amrit Lal Manchanda, 2004 (3)SCC 75 which is one of the decisions to which our attention has been drawn by Ms. Babbar, learned counsel for the Respondents.

(2.) SIMILAR observations can be found in Union of India -vs- Vidya bagaria, (2004) 5 SCC 577 and Union of India -vs- Chaya Ghoshal, (2005) 10 SCC 97 in which their Lordships inter alia observed as follows: 9. The constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of State's security, public order, disruption of national economic discipline, etc. being envisaged as a necessary evil to be administered under strict constitutional restrictions. In Icchu Devi choraria -vs- Union of India, (1980) 4 SCC 531 this judicial commitment was highlighted in the following words:

(3.) THE same five tests, imperative or exceptions of Gadia have also been reiterated in Naresh Kumar Goyal -vs- Union of India, (2005) 8 SCC 276 delivered by a Three-Judge Bench. The argument predicated on the order of detention having been passed belatedly was repulsed, as was the contention that it was passed for the wrong purpose. The Court observed that since the case did not fall within any of the exceptions enumerated in Gadia, the High Court was justified in declining to exercise powers under Article 226 of the Constitution to quash the order of Detention at the pre-arrest stage. The following passage thereof is reproduced for facility of reference:-