Kailash Chand and Another vs State of Rajasthan and Another

G.M. Lodha, Acting C.J.

Since both these writ petitions involve identical questions of law, we have accepted the request of the learned Counsel for the parties to decide them by this common judgment.

In both the writ petitions the petitioners have not been arrested so far and the detention order has not been served upon them. It appears that earlier they filed another writ petition against the detention order dated 22nd October, 1986 under provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (here in after referred to as the Act). The earlier writ petitions were also under Article 226 of the Constitution of India. Stay order was obtained in that writ petition and on account of that, detention orders were not served. Thereafter those writ petitions were withdrawn. No liberty was granted to the petitioners to file fresh writ petition in those writ petitions. After the withdrawal of the writ petitions, for 5-6 months according to the respondents, the petitioners remained under-ground and detention order could not be served upon them. Thereafter the present writ petitions have been filed. These writ petitions have been filed in the month of March, 1987 and on July 10, 1987 an order was passed that warrants of arrest shall not be executed for a period of one week. Thereafter this order continued by virtue of an order dated 24th July, 1987.

Today, when the arguments commenced, we asked Mr. Jain to " surrender the petitioners first, on which he submitted that it is not necessary and he would like to argue the case without surrendering the detenues.

The net result of the above factual and historical narration is that the detention order earlier passed on 24th October, 1986 could not be served and we are now at the end of December 1987. In our opinion this by itself tantamounts to serious abuse of process of law and, the questionable conduct of the petitioners is sufficient to reject these writ petitions as even today, the petitioners want to have the opinion of the Court first regarding the validity of the detention and refuse to surrender when the Court directed (hem to do so. In our opinion, in the matter of detention under the laws enacted by the Parliament, for detaining the persons unless there are extra-ordinary abnormal circumstances no writ petition could be entertained without the detenue surrendering to the detention order.

As a matter of fact unless detention order is served, the detenue is not in a position to get the grounds of detention and without getting the grounds of detention it is difficult for any authority to ascertain precisely whether the allegations of the petitioner of malafide or the other grounds being nonexistent in law are correct.

Curiously enough, the learned Counsel for the petitioner''s submission tantamounts to this that the law. be amended, by giving them an opportunity, to get the validity of the grounds examined first by the Court and compelling to disclose those grounds before service of the detention order.

The Legislature in its wisdom has not provided such a procedure for pre-adjudication of the validity of the detention order and its grounds. Contrary to it the Act provides for making a representation against the order of detention to the appropriate Government and that representation is to be considered by an Advisory Board constituted by the Central Government or State Government which consists of Judges a High Court, sitting or retired, as the case may be. The petitioners want to circumvent all this procedure and indirectly carved out their own procedure for avoiding arrest and getting the detention order and its grounds validly decided by the High Court and even by the Supreme Court, if necessary. We regret that we cannot allow such a procedure to be adopted against the specific scheme of the Act. The wisdom of the Legislature in this respect cannot be questioned by the court.

Even then, we have heard Mr. Jain at length, Mr. Jain has tried to emphasise that there was certain enmity between some of the officers and the petitioners. As the petitioners were crusader against corruption and some of the officers were corrupt and therefore, the corrupt officers in their turn planted certain cases due to personal vendetta.

So far as the material stands, we are not prepared to accept these allegations which are, plainly speaking vague. More so, these allegations can be examined by the Advisory Board. The Advisory Board is competent to consider all the material which is placed before it, and further after the Advisory Board gives its opinion the State Government again would be seized of the matter. Even before that, when the detention order is served and the detenues make representations against the impugned detention the State Government would examine those representations. That authority would be higher to the authority which has passed the impugned order. It cannot be accepted that the officers, who according to the petitioners are against them, would be able to influence the higher officers.

We are of the opinion that no ground of malafide is made out. The petitioners have also submitted some case laws on the point that the detention order if delayed in its service goes against the genuineness of the subjective satisfaction of the detaining authority. We find from the facts mentioned in the decision of Sk. Nizamuddin Vs. State of West Bengal, that there was single case of theft of aluminium wire and the detenu was discharged in the criminal case. After discharge the order of detention was passed on the very same ground and there was a plea of malafides and that there was no necessity of detention thereafter because he was not arrested for two and a half months. It was not a case where the delay in arrest was on account of detenu''s own efforts and avoidance either by remaining underground or by going in writ petitions one after another and withdrawing it without liberty to file another.

We are convinced that the principles laid down in the above decision cannot be applied in the present case, because of the patent fact that the detenu on the one hand, has avoided arrest from the very beginning and now he wants to get out of it.

Mr. Jain also pointed out that the delay is in sending of the report on the ground of detention to the Central Government. We are of the opinion that these are the matters on which no adjudication can be made. Obviously the bedrock of the case could not be prepared on the basis of which a direction has been sought.

Consequently, the writ petitions are dismissed as having no merit at all. We direct the State authorites to take active steps to get served the warrants upon the petitioners and they may make representations to the State Government as provided under the Act. The respondents would get costs of these writ petitions, which would be Rs. 1,000/.- each.