Preventive detention passes SC test despite CJI dissent

Dismissing a bunch of 11 petitions that had raised questions over validity of detention orders passed several years ago,the majority verdict said that “setting aside the order of detention merely on the ground of long lapse of time might lead to grave consequences which would clash with the object and purpose of the preventive detention laws”.

It asserted that those,who have evaded the process of law,shall not be heard by this court to say that their fundamental rights are in jeopardy and that permitting such an argument would amount to enabling the lawbreaker to take advantage of his own conduct,which is contrary to law.

Referring to several unexecuted detention orders passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA ) Act and the National Security Act,the Bench said it could not hand over a convenient tool to the lawbreakers to first abscond and then challenge the validity of the orders on the ground of delay.

“To hold that an order is fit to be quashed merely because it could not be executed for one reason or the other,especially when the proposed detenue was evading the detention order and indulging in forum-shopping,the laws of preventive detention would surely be reduced into a hollow piece of legislation which is surely not the purpose and object of the Act,” it said.

The Bench also made it clear that no relief could be given to such persons on an argument that the reason why a detention order was passed years ago did not exist anymore and hence he was not required to detained under the law anymore. “Subsequent events or conduct in any view would be a matter of consideration for the authorities before whom the representation is filed after the grounds are served on the detenue and cannot be gone into when the only question raised is regarding the correctness and legality of the order of detention,” it held.

Differing with the majority opinion,Justice Kabir felt that the very purpose of such detention orders were rendered meaningless in the absence of any material that the proposed detenues had continued to indulge in activities which form the basis of the preventive detention orders. He added that orders of detention must not,as a matter of course,be read as an alternative to the ordinary laws of the land to avoid the rigours of investigation in order to make out a case for prosecution against the proposed detenue.