KANCHANLAL MANEKLAL CHOKSHI v. THE STATE OF GUJARAT AND ORS (2)

Citation: [1980] 1 S.C.R. 54

Court: Supreme Court of India

Bench: R.S. SARKARIA, P.N. SHINGAL, O. CHINNAPPA REDDY

Case summary

-Kanchanlal Maneklar Chokshi who is in preventive detention under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and whose petition for the issue of a writ of Habeas Corpus was rejected by the High Court of Gujarat is...

Judgment text

KANCHANLAL MANEKLAL CHOKSHI v. THE STATE OF GUJARAT AND ORS. July 23, 1979 [R. S. SARKARIA, P. N. SHINGHAL AND 0. CHINNAPPA REDDY, JJ. ] 8 • Conservation of Foreign Exchange and Prevention of Sn1uggling Activities Act, 1974-Failure of detalning authon"ty to consider possibility of prosecu-tion bez'ng launched-If could lead t. o the conclusion that it never applied its mind-Order of detention if void on that ground. In Ashok Murlidhar v. State of Gujarat a Division Bench of the High Court thought that this Court in Hardhan Saha & Anr. v. The State of West Bengal & Ors. , [1975] 1 SCR 778 laid down that where a person \Vas sought to be detained preventively the possibility of a prosecution being launched was an irrelevant consideration which need never be present to the mind of the detaining authority.

Purporting to follow this decision another Division Bench of the High Court rejected the habeas corpus petition of the appellant who was in preventive detention under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, The Division Bench certified that a substantial question whether it is necessary for the detaining authority to consider whether a person should be prosecuted before an order of detention is made against him needed to be decided by this Court. In appeal to this Court it was contended on behalf of the appellant that it was axiomatic that the detaining authority must invariably consider the pcssibility of launching a prosecution before making an order of detention, in the absence of which the order of detention must be held to be bad. Dismissing the appeal, iHELD : 1.

In Hardhan Saha's case this Court did not say that the possibility of a prosecution being launched was an irrelevant consideration which need never be present to the mind of the detaining authority. All that wasi laid down in that ibility of a prosecution would necessarily vitiate the order of detent10n was not considered by the learned judges. In Sri/al Shaw v. State of West Bengal & Ors. ('), the prosecution was dropped and thereafter an order of preventive detention was passed. The substance of the allegation against the detenu was that he was in unlawful possession of scrap metal belonging t'o the Railway. The Court came to the conclusion that on the material which was available to the detaining authority, it was impossible to arrive at the conclusion that the possession of the petitioner was unlawful. The Court found that the reason given by the District Magistrate for dropping the prosecution was unacceptable.

It was observed that the prosecution was in all probability dropped as the petitioner might have been able to establish that his possession of the goods was not unlawful. The case struck the Court as a typical case in which for no apparent reason a person who could easily be prosecuted under the punitive law was being preventively detained. It is seen that the decision turned on the peculiar facts of the case and throws no light on the question presently raised before us. In Abdul Gaffer v. State of West Bengal(') the order of detention was passed on the basis of a few instances of theft of Railway property for which the detenu could well and easily have been prosecuted. The contention before the Court was that the order of detention was passed by the detaining authority mechanically without applying its mind to the question whether the facts disc16sed · the tendency of the petitioner to· act prejudicially in the manner mentioned in the detention order.

The bald and sweeping allegation was made in the counter filed on behalf of the State that material witnesses were afraid of giving evidence in the Court against the detenu. The material witnesses were members of the Railway Protection Force. In J that situation Sarkaria J. , observed that the version given in the ' counter was incredible and could not be swallowed. The learned Judge then observed "tM conclusion therefore is inescapable that the petitioner has been preventively detained without application ? f mind as to whether the prosecution against him was foredoomed to failure on the ground of witnesses being afraid fo depose against the detenu ll (! ) AIR 1975 SC 393. (2) AIR 1975 SC 1496. K. M. CHOKSHI v. GUJARAT (Chinnappa Reddy, J. ) mCourt. The impugned order has been made in a casual and cavalier manner".

It is seen that there was an express allegatio0; that re- ' course was had to preventive detention despite the fact that criminal prosecutions could well have been successfully launched, based as the case was on the evidence of members of the Railway Protection Foret. The rC'ason given by the State for taking recourse to preventive detention was found to be fantastic. The decision thus stands on j' the special facts of the case. Jn Dula/ Roy v. The District Magistrate, Burdwan & Ors. ,(') the Court had to consider a situation where a month after a person was nrrested in connection with a criminal case he was discharged but was taken into custody on the same day pursuant to an order of detention. Krishna Iyer and Sarkaria, JJ. , while observing that as an abstract legal proposition an order of preventive detention could be validly jl'assed against a . But, the possibility of launching a crimina·l prosecution is not an absolute bar to an order of preventive detention.

Nor is it correct to say that if such possi- • bility is not present to the mind of the detaining authority the order of detention is necessarily bad. However, the failure of the detaining • authority to consider the possibility of launching a criminal prosecution may, in the circumstances of a case. lead to the conclusion that the detaining authority had not •applied its mind to the vital question whether it was neoessary to make an order of preventive detention. Where an express allegation is made that the order of detention wa1> issued in a mechanical fashion without keeping present to its mind the question whether it was necessary to make such an order when an ordinary criminal prosecution could well serve the purpose, the detaining authority must satisfy the Court that that question too was borne in mind before the order of detention was made.

If the detaining authority fails to satisfy the Court that the detaining authority so bore the question in mind the Court would be justified in drawing the inference that there was no application of the mind by the detaining authority to the vital question whether it was necessary to preventively detain the dctenu. The facts of the present case are that the grounds of detention: served on the appellant contain a very elaborate statement of facts quite clearly pointing to an application of the mind by the detaining authority. The appellant did not complain in the Writ Petition that the detaining authority had not applied its mind and in particular had not considered the question of the possibility of a prosecution. Nor are there any facts appearing from the record which can lead us to infer that the detaining authority did not apply its mind to relevant considerations. We do not, therefore, think that the order of detention is in any manner infirm. The appeal is accordingly dismissed.

. , P. B. R. Appeal dismissed. •