Judgment:
Samaresh Banerjea, J.
1. The instant appeal before us raises a short but very important question of law namely, whether a citizen can invoke the jurisdiction of the Writ Court under Article 226 of the Constitution in apprehension that he may be obtained under a preventive detention Act and can obtain an injunction restraining the detaining authority from passing such an order of detention.
2. The respondent/writ petitioner moved an application under Article 226 of the Constitution inter alia on the allegation that he reasonably believed that the appropriate authorities were going to issue an order of detention under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (hereinafter referred to as COFEPOSA) although he has been released on bail by the learned Chief Metropolitan Magistrate, Calcutta after he was arrested on the allegation of violation of the provisions of Foreign Exchange Regulation Act. In the said writ application the writ petitioner prayed inter alia for issue of writ or Mandamus commanding the respondents to cancel, to withdraw or and/or rescind the purported order of detention if any issued or to be issued against the petitioner under provisions of COFEPOSA and also for issue of a writ of prohibition for prohibiting the respondents from proceeding in any manner with the purported order of detention if any.
3. The said writ application was moved ex parte on 13th April, 1993 before a learned Single Judge of this Court sitting in vacation, whereupon on an undertaking by the writ petitioner that he will not leave Calcutta jurisdiction without prior leave of the Court, interim order inter alia in terms of prayer (L) was granted, the said prayer (L) is quoted hereunder :
'(1) An order of injunction do issue restraining the respondents and each one of them by themselves and/or by their subordinates and/or agents and/or assigns from giving any effect or further effect to and/or taking any steps or further steps pursuant to and/or acting or further acting or continuing to act on the basis of the purported order of detention, if any, already issued or to be issued under the provision of COFEPOSA against the petitioner and the purported issuance of the summons under Section 40 of the Foreign Exchange Regulation Act, 1973 (46 of 1973) from detaining the petitioner under the provision of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 in any manner whatsoever till the disposal of the Rule'.
4. The said matter thereafter appeared before the regular Bench after the vacation and by an order dated 4th June, 1993 another Single Judge of this Court has extended the said interim orders until further orders and granted liberty to the present appellant to apply for vacating the interim order and gave directions for filing affidavits.
The present appeal has been preferred against the said order extending the aforesaid interim order until further orders, and an application for stay has also been moved in connection with aforesaid appeal for stay of the aforesaid order dated 4th June 1993.
5. By consent of the parties we have heard the appeal and the stay application together.
6. The main submission for the appellant before us is that although the writ Court has power to interfere with an order of detention even at the pre- execution stage, such power is to be exercised very sparingly and only on very limited grounds in absence of which no such writ petition should be entertained and stay of execution of the detention order should be granted.
7. Mr. Anjan Mukherjee, the learned Counsel for the appellant submitted that such limited grounds and the parameters under which the High Court can interfere under Article 226 of the Constitution with an order of detention even at the pre-execution stage has now been enunciated and specified by Supreme Court in its recent decision in the case of the Additional Secretary to the Govt. of India v. Smt. Alka Subhash Gadia and Anr. reported in Judgment Today 1991(1) SC page 549: 1992 SCC (Criminal) 301: 1992 Supplement (1) SCC 496. Mr. Mukherjee has taken us through the entire aforesaid judgment of the Supreme Court and has drawn our specific attention inter alia to paragraph 30 of the said judgment where Supreme Court after holding that the Courts have power to entertain grievances against any detention order even prior to its execution, at the same time has pronounced that such, power of the Court can be exercised sparingly and the grounds on which the Courts have interfered with the detention order at the pre-execution stage are very limited in scope and number, viz., where the Supreme Court is 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 no1 authority to do so.
8. Mr. Mukherjee has submitted after taking us through the various paragraphs of the writ petition that the grounds on which the writ petition was moved at the pre-execution stage of the order of detention being really on apprehension that an order of detention was going to be issued, do not come at all within the aforesaid parametres laid down by the Supreme Court in the said case of Additional Secretary v. Smt. Alka Subhash Gadia (supra). The further submission of Mr. Mukherjee is that the aforesaid parametres laid down by the Supreme Court in the said case are exhaustive and grounds on which the writ petition was moved not coming with any of such para- metres laid down by the Supreme Court, the said writ application was not even maintainable and therefore the Trial Court could not have extended the interim order and even could not have admitted the writ petition and granted the interim order at the initial stage and should have dismissed the petition in limini.
9. Mr. Mukherjee has also placed reliance in the decision of the Supreme Court in the case of N.K. Bapna v. Union of India and Ors. reported in Judgment Today : 1992(60)ELT13(SC) and also in the decision of State of Tamil Nadu v. R.K. Shamsuddin reported in Judgment Today 1992(4) SC page 179 where according to Mr. Mukherjee, principles of law laid down in the case of Additional Secretary v. Alka Subhash Gadia (supra) that the Court can interfere at the pre-execution stage of the detention Order only an exceptional and very limited grounds as specified in the said judgment, has been reiterated.
10. The further submission of Mr. Mukherjee is that in any event in the instant case not only no interim order could have been granted but also the writ petition itself should have been dismissed, as the writ petition has been moved not really at the pre-execution stage of an existing detention order but on the speculation that the order of detention under COFEPOSA may be issued, but no writ petition can be maintained on speculation or on apprehension that an order of detention is going to' be issued. The contention of Mr. Mukherjee is that although Courts have power to interfere with an order of detention at the pre-execution stage such power can be exercised on the limited grounds as specified in the said decision of Additional Secretary v. Smt. Alka Subhash Gadia (supra) only when the order of detention is actually in existence, but not on the apprehension or on the speculation that such order of detention may be issued. In support of such contention also be has relied upon the said decision of the Additional Secretary v. Smt. Alka Subhash Gadia and Anr. (supra) and S.M.D. Kiran Pasa v. Govt. of Andhra Pradesh and Ors., reported in Judgment Today : (1990)1SCC328 . Mr. Mukherjee submits, in such view of the matter not only the interim order should be vacated, the writ petition itself should be dismissed, being not maintainable.
11. Mr. Bhola Nath Sen, learned Counsel for the respondent although does not dispute the proposition of law that the power of the Court to interfere with the order of detention in a pre-execution stage is limited and should be used sparingly, submits that the instant case is a fit and proper one, warranting interference by the Writ Court because of threatened violation of the petitioner's liberty by the appellants. He further submits that the grounds and/or parametres laid down by the Supreme Court in the case of Additional Secretary v. Smt. Alka Subhash Gadia (supra) which permits interference by the High Court and the Supreme Court with an order of detention at the pre-execution stage are not exhaustive but merely illustrative and there may be other appropriate and proper grounds on which such interference may be made and the grounds made out in the instant writ petition certainly call for interference by the Court.
12. Mr. Sen has also taken us through the writ petition and very much emphasised on two grounds, which according to him are fit and proper grounds warranting such interference by the Writ Court with an order of detention even at the pre-execution stage.
13. One of such grounds as per pleadings in the writ petition is that the petitioner is sought to be implicated in a Foreign Exchange Transaction done in the name of a firm of which he was merely an employee the service of which he left long ago and the statements made by him before the Income Tax Authorities and before the Enforcement Officers were obtained from him under coercion by the previous employer Sushil Agarwal and under coercion and physical torture by the Enforcement Officers respectively. The second such ground was that the petitioner after his arrest on the alleged violation of FERA was produced before the Court of the Chief Metropolitan Magistrate, Calcutta and learned Magistrate after remanding him to custody initially ultimately granted him bail; in the said criminal proceeding from the remand application made by the Assistant Enforcement Officer it would appear that the appellants are alleging his involvement in an illegal Foreign Exchange transaction which took place in 1988, but there being no allegation in the said remand application of any further criminal act on the part of the petitioner for the last 5 years, detention of the petitioner under COFEPOSA is not justified, the delay not having been explained by the appellants.
After careful consideration of the submissions of the respective parties we are of the view that the writ petition itself could not have been even maintained by the writ petitioner/respondent under the facts and circumstances of this case.
14. In our view, although the position of law that even at the pre-execution stage of an order of detention, Court can interfere under limited circumstances has now been settled by the Supreme Court, the same is permissible only when order of detention though not served upon the detenu is already in existence, but not on the apprehension or speculation that the order of detention may be made or may be issued.
15. The reason is obvious. It is only when the order of detention has been made already and the detenu somehow comes to know about the existence of the same, the threat to infringement of his liberty becomes real, for which Court may interfere under such limited grounds as specified in the case of Additional Secy. v. Alka Subhash Gadia (supra). But when the detention order has not yet been made, the apprehension of the petitioner that such a detention order may be issued does not amount to a real threat to or invasion of his right but it remains in the domain of speculation.
16. Such position of law would be evident from the case of Additional Secy. v. Smt. Alka Subhash Gadia (supra) itself. In the said case also it will appear the order of detention was actually passed on 13th December, 1985 but could not be served upon the detenu as he was absconding and ultimately the writ petition was moved by the wife of the detenu.
17. The following observations of the Supreme Court at paragraph 32 of the said judgment leaves no manner of doubt that interference at the pre- execution stage on the limited grounds as specified in the said: case can only be made when the detenu satisfies the Court about actual existence of the order of detention, though not served, by proper affirmation :
'Thirdly, in the rare cases where the detenu, before being served with them, learns of the detention order and the premises on which it is made, and satisfies the Court of their existence by proper affirmation, the Court does not decline to entertain the writ petition even at the pre-execution stage, of course, on the very limited grounds stated above'. Here printed in italics.
18. The same was also the view of the Supreme Court even in its earlier decision in the case of S.M.D. Kiran Pasav. Govt. of Andhra Pradesh, reported in Judgment Today 1989(4) SC 366 which has been overruled by the Supreme Court in the subsequent case of Smt. Alka Subhash Gadia to the extent it is inconsistent with the decision of the Supreme Court in Alkd Gadia's case. In paragraph 14 of the said Kiran Pasa's case, the Supreme Court while holding that at pre-execution stage of an order of detention the Court can interfere in case of threat of violation of liberty of a citizen or when such violation is imminent, held thus :
'The question may arise what precisely may amount to threat or imminence of violation. Law surely cannot take action for internal thoughts but can only after overt acts. If overt acts towards violation have already been done end the same has some to the knowledge of the person threatened with that violation and he approaches the Court under Article 226 giving sufficient particulars of proximate actions as would imminently lead to violation of right, should not the Court call upon those alleged to have taken those steps to appear and show cause why they should not be restrained from violating that right Instead of doing so would it be the proper course to be adopted to tell the petitioner that the Court cannot take any action towards preventive justice until his right is actually violated whereafter alone he could petition for a writ of habeas corpus'.
19. It is obvious, therefore, that such overt acts would be the existence of the detention order itself which would amount to real threat to the liberty of the detenu making the infringement thereof imminent.
20. The Division Bench of our High Court presided over by Anil Kr. Sen, J., in the case of Union of India v. Abdul Sattar, reported in 1984(1) CHN page 422 also held that at the pre-execution stage there can be interference only when the order of detention actually exists and not on the speculation that such order would be issued. The Division Bench observed thus :
'The two decisions of the Supreme Court relied on by Mr. Sen are authorities for a principle which is now settled, viz-, a citizen is entitled to move this Court in writ jurisdiction not only when his right is infringed but also when it is threatened to be infringed. Bombay High Court follows the same principle when it held that a person against whom an order of detention has been made can challenge the order even before its execution. But in all these cases threat of infringement was real based on concrete materials. In none of these cases, the threat was an apprehended threat based on speculation as in the case now before us. Here in the present case, this Court has been moved merely on an apprehension-such an apprehension is that an order of detention may have been made against the petitioner and further that such an order may not have been made bona fide and in accordance with law. The principle laid down by the Supreme Court is based on the basic assumption that there must be some reasonable grounds to support the alleged threat and the Court can satisfy itself about the impending threat with reference to the facts constituting the grounds. That principle cannot be extended to cover a case where on a mere apprehension in the mind of a citizen, he can invoke the writ jurisdiction of this Court and obtain an anticipatory relief. It is not a case where any law having been promulgated or any particular statutory order having been made there is imminent likelihood of such law or order infringing or affecting the citizen's right. All that the petitioner makes out in his application under Article 226 of the Constitution is an apprehension which may as well turn out to be misapprehension. He is apprehending an order of which he is not sure. He is further apprehending that such an order would not be bona fide and in accordance with law. All this is really speculation. On such speculation the Court cannot act, if the Court acts on such a case then it will be difficult for the authorities vested with the powers under the statute to exercise such powers even lawfully. This view of ours is well supported by earlier decisions of this Court in the case of Union of India v. D.G. Vohra 80 CWN page 312, D.S. Surana v. Union of India 80 CWN 605 and Dayalal S. Sana v. Union of India 1976(1) CHN 551'.
21. It will appear from the instant writ petition itself that the same has been moved merely on the speculation that the order of detention under COFEPOSA may be issued against him by the respondent. Although the petitioner pleaded in the writ petition that he has reasonable apprehension that the respondents are going to detain him under COFEPOSA and he has been threatened to that effect by the Enforcement Officer, in paras 39 and 41 of the writ application it has been pleaded that he has come to know that the respondents are going to issue the order of detention under COFEPOSA and he reasonably believes that the appropriate authorities are going to issue such detention order and on such anticipation he had moved a writ application. The petitioner, therefore, is not sure about the same, but merely anticipating that the detention order would be issued. Even his allegation that the grounds of such detention would be the same as the grounds of his arrest for alleged violation of FERA as pleaded in the Remand application, is merely a speculation and anticipation.
22. Under such circumstances, because of the position of law as discussed above, the writ petition was not even maintainable. The Trial Court, therefore, not only could not have extended the interim order but also no interim order could have been granted at all and the petition ought to have been dismissed being not maintainable. On this ground alone the appeal is liable to be allowed.
But even proceeding on the footing that the threat to the liberty of the petitioner is real and imminent and not speculative, even then interim order granted by the Trial Court cannot be sustained and the writ petition itself is liable to be dismissed, as the grounds on which the instant writ application was moved, do not come within any of the grounds and/or parametres laid down by the Supreme Court in the aforesaid case of Additional Secretary v. Alka Subhash Gadia under which the Court can interfere with the order of detention at the pre-execution stage.
While it has now been settled by the recent decisions of the Supreme Court that the High Court under Article 226 of the Constitution and the Supreme Court under Article 32 of the Constitution has the power to interfere with an order of detention passed under any preventive law even at the pre-execution stage in a fit and a propr case, it has been further settled by the recent decision of the Supreme Court that such power is to be used by the Court must sparingly and only under exceptional circumstances and on the limited grounds as laid down in the paragraph 30 in the case of Additional Secy. v. Smt. Alka Subhash Gadia (supra). Interference by the High Court under Article 226 of the Constitution with an order of detention at the pre-execution stage can only be justified if a given case falls within the parametres outlined in the case of Additional Secy. v. Smt. Alka Subhash Gadia and not otherwise. Such position would be evident from the subsequent decision of the Supreme Court in the case of N.K. Bapna v. Union of India (supra) in paragraph 4 of which the Supreme Court held thus :
'It is now well settled that, even in a case of preventive detention, it is not necessary for the proposed detenu to wait till a detention order is served upon him before challenging the detention order. It is true that the Constitution of India, which permits preventive detention requires the detaining authorities to serve the grounds of detention within a prescribed period after the detention order is served on the detenu.
It does not envisage any disclosure of the grounds of detention prior to the service of the detention order on the detenu. To apprise the detenu in advance of the grounds on which he is proposed to be detained may well frustrate the very purpose of the law. On the other hand, to insist that no order of detention can be challenged until actual detention in pursuance thereof, takes place might irretriavably prejudice the rights of proposed detenues in certain situations. Thus, the conflicting claims of the state and the fundamental right of a citizen need to be reconciled and the limitations, if any, precisely enunciated. This has been done by the recent decision of this Court in Additional Secretary v. Smt. Alka Subhash Gadia and Ors., : 1991(53)ELT481(SC) '.
Such position has been further reiterated by the Supreme Court in its subsequent decision in the case of State of Tamil Nadu v. R.K. Shamsudeen (supra) where one of the grounds on which the Supreme Court allowed the appeal (setting aside the order of the High Court issuing the writ of mandamus directing appellants to forbear from executing the detention order) that the case made out in the writ petition does not fall within the parametres outlined in the case of Alka Subhash Gadia justifying interference with the detention order at the pre-detention stage.
23. Much emphasis has been laid by the learned Counsel appearing for the writ petitioner/respondent that no explanation has been offered by the appellants either in the remand petition made before the learned Chief Metropolitan Magistrate, Calcutta in connection with the criminal case initiated against the petitioner for alleged violation of Foreign Exchange Regulation Act or even in its affidavit-in-reply to the application for stay made before this Court as to the delay of passing the order of detention relating to alleged incident which took place in the year 1988 as referred to in such remand petition. Apart from the fact that such ground does not fall within any of the parametres outlined in the case of Smt. Alka Subhash Gadia justifying interference with the order of detention at the pre-execution stage, such question cannot be gone into at this stage, when it is not even known what would be the ground of detention and the entire matter as to whether detention order will at all be issued and what will be the ground of detention remain in the decision of speculation.
24. The other grounds of challenge in the writ petition, viz., that the petitioner has been granted bail in connection with a case initiated against the petitioner for alleged violation of the provision of Foreign Exchange Regulation Act and in no way the petitioner is connected with smuggling activities but is sought to be roped in, are misconceived and do not justify interference at this stage, not only because such grounds do not fall within any of the parametres outlined in the said case of Smt. Alka Subhash Gadia justifying interference at the pre-execution stage, but also for the reason such grounds are not even available to the petitioner in a habeas corpus petition even after the service of the order of detention. It was held by the Supreme Court in the case of Haradhan Saha v. State of West Bengal, reported in : 1974CriLJ1479 that the power of preventive detention is precautionary power exercising in reasonable anticipation and it may or it may not relate to an offence; it is not a parallel proceeding; does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched; an order of preventive detention may be made before or during prosecution; with or without prosecution and in anticipation or after discharge or even acquittal; the pendency of prosecution is no her to an order of preventive detention.
25. Then again it is also now well settled that the facts on which subjective satisfaction of the detaining authority is based are not justiciable and so it is not open to the High Court to enquire whether the impugned order of detention is justified on facts or not. The position of law in this regard has been enunciated by the Supreme Court in the case of Khudiram Das v. State of West Bengal, reported in : [1975]2SCR832 by observing thus :
'The power of detention is clearly a preventive measure. It does not perfect in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent on suspicion or anticipation as distinct from proof -This being the nature of the proceeding, it is impossible to conceive how it can possibly be regarded as capable of objective assessment. The matters which have to be considered by the detaining authority are whether the person concerned, having regard to his past conduct indeed in the light of the surrounding circumstances and other relevant material, would be likely to act in a prejudicial manner as contemplated in any of sub-clauses (i), (ii) and (iii) of Clause (1) of sub-section (1) of Section 3, and if so, whether it is necessary to detain him with a view to preventing him from objective determination and they could not be intended to be judged by objective standards. They are essentially matters which have to be administratively determined for the purpose of taking administrative action. Their determination is, therefore, deliberately and advisedly left by the legislature to the subjective satisfaction of the detaining authority which by reason of its special position, experience and expertise would be best fitted to decide them. It must in the circumstances be held that the subjective satisfaction of the detaining authority as regards there matters constitutes the foundation for the exercise of the power of detention and the Court cannot be invited to consider the propriety or sufficiency of the ground on which the satisfaction of the detaining authority is based. The Court cannot, on a review of the grounds, substitute its own opinion for that of the authority, for what is made condition precedent to the exercise of the power of detention is not an objective determination of the necessity of detention for a specified purpose, but the subjective opinion of the detaining authority, and if a subjective opinion is formed by the detaining authority as regards the necessity of detention for specified purpose, the condition of exercise of the power of detention would be fulfilled'.
26. In the premises we are of the view that the writ petition itself was not maintainable and the impugned order under appeal could not have been passed by the learned Judge extending the interim order restraining the appellants from passing the order of detention against the petitioner.
27. The appeal is, therefore, allowed.
28. The order dated 4th June, 1993 which is under appeal is set aside. As we have also taken the view that the writ petition itself is not maintainable for the reasons stated above, the same is also dismissed and all interim orders are vacated. Since the appeal itself has been allowed the stay application is also disposed of. There will be no order as to costs.
29. Prayer for stay is refused. All parties are to act on a signed copy of the operative portion of this judgment on the usual understanding.
P.K. Majumdar, J.
30. I agree.