Inordinate delay in execution of a preventive detention order, either because the offender has been absconding or evading arrest or it could not be executed due to inaction on the part of authorities, cannot be a valid ground for quashing it, the Supreme Court has ruled.
A Bench of Chief Justice Altamas Kabir (who has since retired) and Justices Gyan Sudha Misra and J. Chelameswar, by a majority of 2:1, held that the order of detention at the pre-execution stage “is not fit to be quashed and should not be quashed merely due to a long lapse of time.”
Writing the main judgment, Justice Gyan Sudha said if it was held that a detention order was fit to be quashed merely because the same could not be executed for one reason or the other specially when the person concerned was evading it, “the laws of preventive detention would surely be reduced to a hollow piece of legislation which is surely not the purpose and object of the [Conservation of Foreign Exchange and Prevention of Smuggling Activities, or Cofeposa] Act.”
The judge said it was open to petitioners/appellants to take recourse to remedies by way of independent proceedings, including a representation against the order of detention before the competent authority. But quashing the order at the pre-execution stage would result in acceptance of a sordid situation akin to the adage ‘Let bygones be bygones.’ This “cannot be allowed as that would clearly be defeating the very object and purpose of the preventive detention laws, encouraging the proposed detenu to stay away and twist the arms of law misusing the provisions to their advantage.”
In his separate judgment concurring with Justice Gyan Sudha, Justice Chelameswar said if the preventive detention order was declared illegal merely on the ground that it remained unexecuted for long without examining the reasons for non-execution, the “legislative intention contained in provisions such as Section 7(b) of the Cofeposa Act would be rendered wholly nugatory.”
In his dissenting judgment, Justice Kabir said: “Since it was the intention of the sponsoring authorities that a person having criminal propensities should be prevented from indulging in the same to the prejudice of the public at large and also from indulging in economic offences…, it would have to be established that the intention with which the preventive detention order had been passed continued to subsist so that the same could be executed even at a later date.”
In none of the instant cases, “have the sponsoring or detaining authorities been able to establish that … the proposed detenus continued with their activities, as enumerated in the detention orders, which would support the proposition that the object of the detention orders continued to be valid, even after the lapse of several years. Having regard to the above, where the detention orders have not been executed for more than two years and there is no material on record to indicate that the proposed detenu had continued his anti-social activities, it has to be held that the detention orders in respect of such proposed detenus were no longer relevant and must be quashed.”