ORDER
Arijit Pasayat, C.J.
1. By this petition under Articles 226 and 227 of the Constitution of India, 1950 ( in short the Constitution) legality, validity and vires of the order dated 16.11.1995 passed by respondent No.1 (Union of India through its Joint Secretary, Department of Revenue, Ministry of Finance) has been challenged. Said order was passed in exercise of power under Section 3(1) of the Conservation of Foreign Exchange and Smuggling Activities Act, 1974 (in short the Act), for detaining Suresh Manoharlal Jumani. Present petition has been filed by wife of said Suresh Manohar Lal Jumani. Prayer is for issuance of a writ in the nature of mandamus and or any other appropriate writ directing not to execute the said order. A copy of the order however,has not been annexed to the petition. Stand of the petitioner in essence is that such a prayer has to be accepted as (a) there has been delay in execution of the order of detention, (b) there was non- consideration of the representation made by the petitioner, (c) there is no material to link petitioner’s husband with any irregular or illegal activity. It has also been pleaded that a decision has been taken by the Government by notification dated 22.1.1999 bearing No.671/14/98-CUS VIII notifying that concerned sponsoring authorities shall consider revocation of detention orders which have been issued prior to 1.1.1996 and have remained unexecuted.
2. A preliminary objection has been raised by the respondent stating that the criteria for entertaining the petition questioning legality of the order of detention before execution has been laid down in many cases, and the petitioner has not made out a case for interference before execution of the detention order.
3. Before dealing with rival submissions, it would be appropriate to deal with the purpose and intent of preventive detention Preventive detention is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the Executive is convinced that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the law. The action of Executive in detaining a person being only precautionary, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct, the failure to conform to which should lead to detention. The satisfaction of the detaining authority, therefore, is a purely subjective affair. The detaining authority may act on any material and on any information that it may have before it. Such material and information may merely afford basis for a sufficiently strong suspicion to take action but may not satisfy the tests of legal proof on which alone a conviction for offence will be tenable. The compulsions of the primordial need to maintain order in society without which the enjoyment of all rights, including the right to personal liberty would lose all their meaning are the true justifications for the laws of preventive detention. The pressures of the day in regard to the imperatives of the security of the State and of public order might, it is true require the sacrifice of the personal liberty of individuals. Laws that provide for preventive detention posit that an individual’s conduct prejudicial to the maintenance of public order or to the security of State or corroding financial base provides grounds for satisfaction for a reasonable prognostication of a possible future manifestations of similar propensities on the part of the offender. This jurisdiction has been called a jurisdiction of suspicion; but the compulsions of the very preservation of the values of freedom of democratic society and of social order might compel a curtailment for individual liberty. “To lose our country by a scrupulous adherence to the written law” said Thomas Jefferson “would be to lose the law itself, with life, liberty and all those who are enjoying with us, thus absurdly sacrificing the end to the needs.” This, no doubt, is the theoretical jurisdiction for the law enabling preventive detention. But the actual manner of administration of the law of preventive detention is of utmost importance. The law has to be justified by the genius of its administration so as to strike the right balance between individual liberty on the one hand and the needs of an orderly society on the other.
4. The question whether the detenu or any one on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it has been examined by various Courts. One of the leading judgments on the subject is Addl Secretary to the Govt of India v. Alka subhash Gadia 1992 Supp (I) SCC 496. In para 12 of the said judgment, it was observed by the Apex Court as follows-
12. This is not to say that the jurisdiction of the High Court and the Supreme Court under Article 226 and 32 respectively has no role to play once the detention-punitive or preventive- is shown to have been made under the law so made for the purpose. This is to point out the limitations which the High Court and the Supreme Court have to observe while exercising their respective jurisdiction in such cases. These limitations are normal and well know, and are self-imposed as a matter of prudence, propriety, policy and practice and are observed while dealing with cases under all laws. Though the Constitution does not place any restriction on these powers, the judicial decision have evolved them over a period of years taking into consideration the nature of the right infringed or threatened to be infringed, the scope and object of the legislation or of the order or decision complained of, the need to balance the rights and interests of the individual as against those of the society, the circumstances under which and the persons by whom the jurisdiction is invoked, the nature of relief sought etc. To illustrate these limitations; (i) in the exercise of their discretionary jurisdiction the High Court and the Supreme Court do not, as courts of appeal or revision, correct mere errors of law or of facts; (ii) the resort to the said jurisdiction is not permitted as an alternative remedy for relief which may be obtained by suit or other mode prescribed by statute. Where it is open to the aggrieved person to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided in the statute, the court does not, by exercising the writ jurisdiction, permit the machinery created by the statute to be by-passed; (iii) it does not generally enter upon the determination of questions which demand an elaborate examination of evidence to establish the right to enforce which, the writ is claimed; (iv) it does not interfere on the merits with the determination of the issues made by the authority invested with statutory power, particularly when they relate to matters calling for expertise, unless there are exceptional circumstances calling for judicial intervention, such as, where the determination is mala fide or is prompted by extraneous considerations or is made in contravention of the principles of natural justice or any constitutional provision; (v) the court may also intervene where (a) the authority acting under the concerned law does not have the requisite authority or the order which is purported to have been passed under the law is not warranted or is in breach of the provisions of the concerned law or the person against whom the action is taken is not the person against whom the order is directed; or (b)where the authority has exceeded its powers or jurisdiction or has failed or refused to exer4cise jurisdiction vested in it; or (c) where the authority has not applied its mind at all or has exercised its power dishonestly or for an improper purpose; (vi) where the Court cannot grant a final relief, the Court does not entertain petition only for giving interim relief. If the Court is of opinion that there is no other convenient or efficacious remedy open to the petitioner, it will proceed to investigate the case on its merits and if the Court finds that there is an infringement of the petitioner’s legal rights, it will grant final relief but will not dispose of the petition only by granting interim relief, (vii) where the satisfaction of the authority is subjective, the Court intervenes when the authority has acted under the dictates of another body or when the conclusion is arrived at by the application of a wrong test or misconstruction of a statute or it is not based on material which is of a rationally probative value and relevant to the subject matter in respect of which the authority is to satisfy itself. If again the satisfaction is arrived at by taking into consideration material which the authority properly could not, or by omitting to consider matters which it ought to have, the court interferes with the resultant order; (viii)In proper cases the Court also intervenes when some legal or fundamental right of the individual is seriously threatened, though not actually invaded.”
5. The petitioner has made a grievance that she came to know about the order of detention after action was taken by the authorities under the provisions of Smuggling of Foreign Exchange Manipulators (forfeiture) of Property Act 1976 (in short, SAFEMA). It is pointed out that originally petitioner’s father-in-law had made a representation on 2.9.1996 regarding detention order passed in respect of Suresh, husband of the petitioner. At that point of time it was noted that Suresh had evaded duty payable to the extent of Rs. 77,74,00,000/- and subsequently Rs. 59.28 lakhs had been paid by the company M/S Dharam Impex Pvt Ltd a sum of Rs. 18.46 lakhs was still to be paid. Question of reviewing the order would arise after amount is paid It is fairly accepted by the learned counsel for the petitioner that the matter relating to leviability of duty is subject matter of appeal. That being the position, we find no substance in the plea raised by the petitioner that without any material to link the petitioner’s husband with any irregular or illegal transaction, the order of detention has been passed. It would not be desirable for us to test the sufficiency or otherwise of the material pressed into service by the authorities.
6. Though learned counsel for the petitioner stated that various categories noted by the Apex Court in Alka Subash’s case (supra) are not exhaustive and are illustrative of the circumstances. According to him, present case clearly makes out ground for interference even at this stage when order of detention has not been executed. We find no substance in this plea. In a recent case- Sayed Taher Bawamiya v. Joint Secretary, , it was observed by the Apex Court as follows:
“This Court in Alka Gadia case was also concerned with a matter where the detention order had not been served but the High Court had entertained the petition under article 226 of the Constitution. This Court held that equitable jurisdiction under Article 226 and Article 32 which is discretionary in nature would not be exercised in a case where the proposed detenu successfully evades the service of the order. The Court, however, noted that the courts have the necessary power in appropriate cases to interfere with the detention order at the pre-execution stage but the scope for interference is very limited. It was held that the courts will interfere at the pre-execution stage with the detention orders only after 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.
As we see it, the present case does not fall under any of the aforesaid five exceptions for the court to interfere. It was contended that these exceptions are not exhaustive. We are unable to agree with this submission. Alka Subhash Gadia case shows that it is only in these five types of instances that the court may exercise its discretionary jurisdiction under Article 226 or Article 32 at the pre-execution stage. The petitioner had sought to contend that the order which was passed was vague, extraneous and on irrelevant grounds but there is no material for making such an averment for the simple reason that the order of detention and the grounds on which the said order is passed has not been placed on record inasmuch as the order has not yet been executed. The petitioner does not have a copy of the same and therefore it is not open to the petitioner to contend that the non existent order was passed on vague, extraneous or on irrelevant grounds.”
Learned counsel for the petitioner could not show as to which of the enumerated categories present case falls. As indicated above the plea about non-consideration of relevant materials does not bring the petitioner within the enumerated categories.
7. A recent decision of the Apex Court also throws considerable light as to what would be the proper course for a person to adopt when he seeks to challenge an order of detention on the available grounds like delayed execution of detention order, delay in consideration of the representation and the like. These questions are really technical nature when the order of detention has not been executed at all and challenge is made at pre-execution stage. In Union of India v. Parasmal Rampuria, Union of India v. Parasmal Rampuria, , Apex Court observed as follows:
“In our view, a very unusual order seems to have been passed in a pending appeal by the Division Bench of the High Court. It is challenged by the Union of India in these appeals. A detention order under Section.3(1) of the COFEPOSA Act was passed by the authorities on 13-9-1996 against the respondent. The respondent before surrendering filed a writ petition in the High Court on 23-10-1996 and obtained ad interim stay of the proposed order which had remained unserved. The learned Single judge after hearing the parties vacated the ad interim relief. Thereafter, the respondent went in appeal before the Division Bench and again obtained ad interim relief on 10-1-1997 which was extended from time to time. The writ appeal has not been still disposed of.
When the writ petition was filed, the respondent had not surrendered. Under these circumstances, the proper order which was required to be passed was to call upon the respondent first to surrender pursuant to the detention order and then to have all his grievances examined on merits after he had an opportunity to study the grounds of detention and to make his representation against the said grounds as required by Article 22(5) of the Constitution of India….”
(underlined for emphasis)
8. With reference to Government of India’s purported notification No. 671/14/98/Cus-VIII dated 22-01-1998 it is submitted by learned counsel for the petitioner that said notification has full application to the facts of the present case, as the detention order questioned was passed prior to 1-1-1996 and was to be revoked. In reply to this stand, it has been stated in the counter-affidavit by the respondents that there was no notification issued as pleaded. Only a letter bearing the number given was issued by the Joint Secretary (COFEPOSA) to different sponsoring authorities. It has been further clarified in the additional affidavit filed on 15.11.2000 that while reviewing cases of absconders in respect of detention orders passed prior to 1.1.1996, one of the criteria fixed was that the person concerned shall not belong to the category of organizers, financiers kingpins, etc. As petitioner’s husband fell in the category of organizers, his detention order was not revoked. Though learned counsel for the petitioner pleaded that there is no material to substantiate the stand taken by the respondents. Learned counsel for the respondent disputed the same. We are of the view that such a disputed question of fact cannot be adjudicated in the present petition.
9. In view of the factual position highlighted, this is not a fit case where any interference is called for, before execution of the order of detention. The petitioner’s husband if so advised may first surrender pursuant to the order of detention and thereafter have his grievances examined on merits. Present petition is thoroughly misconceived and is dismissed.
