Kapil Dutt Bali vs Union of India

V.K. Bali, J.

PetitionerKapil Dutt Bali through present petition filed by him under Article 226 of the Constitution of India seeks quashing of detention order dated May 6, 1994 (annexure P1) passed by respondent under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter to be referred to as the COFEPOSA Act).

Pleaded case of the petitioner is that on September 12, 1993 police of Police Station Garhshankar, District Hoshiarpur, intercepted Car No. PH242300 at Garhshankar and arrested Suram Singh son of Jai Chand, resident of Chachahari, Police Station Badhsar, District Hamirpur and Deep Chand son of Khushi Ram, resident of Tetehal, District Kangra. One Rajinder alias Gorkha, who was also occupant of the car, however, slipped away. On search of the car, the police recovered Rs. fifty lacs. Suram Singh and Deep Chand were detained by the police and the matter was referred to the Enforcement Directorate, Jalandhar, for investigation under the provisions of Foreign Exchange Regulation Act, 1973 (for short the FERA). Under Section 40 of the FERA in their statements so recorded, it was mentioned by them that they had brought the amount from one J.P. Gupta of New Delhi to be delivered to petitioner. It is further the case of petitioner that the authorities of Enforcement Department thoroughly investigated the matter and recorded statements of various persons including J.P. Gupta but none deposed against the petitioner nor any one was known to him. The detention order, Annexure P1, was passed on May 6, 1994 on which date as well the grounds of detention, Annexure P2, were served upon the petitioner. He joined investigation and his statement was recorded on two different dates. He denied his connection with any person mentioned above. With regard to Rs. 50,00,00/ it is the case of the petitioner that one Tarsem Singh had made claim before the authorities concerned for return of his money as he claimed that he was owner of the same, but during the last ten months the authorities have failed to take any decision on the said claim of Tarsem Singh. The officials of the Enforcement Directorate were still not satisfied and got detention order under Section 3(1) of the COFEPOSA Act passed by the respondent. It is stated that there is no material on which the respondent could pass an order of detention. Petitioner applied for grant of anticipatory bail which was allowed. Enforcement Directorate applied for cancellation of the anticipatory bail but the said prayer was declined. The right of liberty of the petitioner so granted under Articles 14, 19, 21 and 22 is stated to have been violated. The specific grounds on which the detention order has been challenged, may be mentioned briefly. It is stated that in the first instance the satisfaction of the detaining authority was not real and germane to the purpose of the Act as the order was passed not as a preventive measure but as a punitive measure. Further, no grounds of detention were framed, formulated or signed contemporaneously and simultaneously at the time of passing of detention order. It is further pleaded that the detention order had been passed on May 6, 1994 whereas the alleged recovery of Rs. fifty lacs was made on September 12, 1993. There was, thus, a delay of eight months in passing the detention order from the prejudicial activities and there was no explanation for the long delay in the grounds of detention supplied to the petitioner. It is further the case of petitioner that the detaining authority had not applied its mind to the facts of the case. There was no application of mind regarding delay in passing the order. There were no allegations that after September 12, 1993 the petitioner had indulged in any such prejudicial activities. The order of detention is also sought to be challenged on the ground that the same was not passed by a proper officer. It is also pleaded that according to the allegations mentioned in the grounds, Annexure P2, a complete offence had been committed but the petitioner was not involved. Had the petitioner been involved in any such case, the authorities would have prosecuted him and nonprosecution of the petitioner in any criminal case in connection with such activities shows the hollowness of the grounds of detention. It is also pleaded that no grounds existed nor the documents were placed before the detaining authority to consider the matter while passing detention order or declaration, The satisfaction of the detaining authority was, thus, void ab initio. The mandatory provisions of COFEPOSA Act were not compiled with. Even after the revocation of the emergency in March, 1977, no steps had been taken by the respondent and as such the order was void. There was undue and unreasonable delay which makes the detention as illegal. It is further the case of petitioner that the order had been passed with a view to preventing the petitioner from acting in any manner prejudicial to the augmentation of foreign exchange. On account of the changed economic policy by the Government, there was no question of acting in any manner prejudicial to the augmentation of foreign exchange and that the documents supplied to the petitioners were irrelevant and in no way connected the petitioner with the prejudicial activities.

Vide Crl. Misc. No. 82 of 1994, additional grounds challenging the detention order were also taken. The same read thus :

(i) that the petitioner had submitted a representation on June 2, 1994 and the order conveyed to him is dated June 22, 1994. There was, thus, a considerable delay which was fatal to the detention order. Petitioner had prayed that an opportunity of hearing personally be provided to him or through counsel but before deciding the representation, no opportunity was provided to him or his counsel. The right of petitioner had been materially affected;

(ii) that most of the documents supplied to the petitioner in support of the grounds of detention were not legible;

(iii) that the main emphasis of the detention order was on the statements of Suram Singh and Deep Chand recorded from September 12, 1993 to September 14, 1993. Both of them had retracted the said statements in application for bail dated September 20, 1993 which was moved in the Court of Sessions Judge, Jalandhar. The said retraction of the confessional statements was not brought to the notice of the detaining authority nor were the same taken into consideration;

(iv) that at the very first opportunity after their arrest, both Suram Singh and Deep Chand had sent communications to the respondent and the Court that they were tortured before their statements were recorded. This fact was not brought to the notice of the detaining authority. Both Suram Singh and Deep Chand were not medically examined or any report regarding medical examination of either of them was produced before the detaining authority before passing the detention order.

Pursuant to the notice issued by this Court, written statement has been filed by Union of India through K.L. Verma, Joint Secretary to the Government of India, Ministry of Finance, New Delhi. It is pleaded by way of preliminary objections that the writ is liable to be dismissed on the ground that the detention order dated May 6, 1994 was issued against the petitioner by detaining authority after considering and going through about 1596 pages which have been relied upon while passing the detention order and that the Supreme Court had clearly held that this Court under Article 226 of the Constitution of India and the Supreme Court either under Article 32 or under Article 136 would not sit on appeal on the order of preventive detention. The normal law is that when an isolated offence or offences are committed, the offenders are to be prosecuted. If that is the law of preventive detention empowering the authority to detain a particular offender in order to disable him to repeat his offences, it can do so but it would be obligation of the detaining authority to formally comply with the provisions of SubArticle (5) of Article 22. The High Court under Article 226 and the Supreme Court under Article 32 has to see whether the formalities enjoined by Article 22(5) have been complied with by the detaining authority. If the formalities have been complied with the Court cannot examine the material before it and find that the detaining authority should not have been satisfied on the material before it and detain the detenu under the preventive detention Act. For that, it is the function of the Appellate Court. It is also pleaded that retraction of the confessional statement does not wipe out the earlier confessional statement. The codetenus of the petitioner were apprehended by the police on September 12, 1993 and their voluntary statements were recorded on September 13 and 14, 1993. Thereafter, statements of 15 persons in this connection were recorded by Delhi Branch of Enforcement Directorate on different dates. Further Investigations were also taken by the enforcement Directorate, Jalandhar as well as at Delhi. The last statement was recorded on April 6, 1994 at Delhi. It took a lot of time as persons involved in the racket went underground and were not easily available. Petitioner himself appeared before the Directorate of Enforcement, Jalandhar in the middle of November, 1993 i.e. about after two months after repeated summons were issued in him. The documents and statements which were in Punjabi and Hindi were translated and fairly typed and then grounds of detention were formulated for supplying the same to the petitioner. The time was consumed in recording statements, conducting investigation and translating the voluminous records and it took a lot of time to go through 1596 pages minutely before passing the detention order. On merits, the case of respondent is that Deep Chased and Suram Singh gave voluntary statements in their own handwriting on the basis of which action was initiated against the petitioner as well as J.P. Gupta and others. The business premises of the petitioner was searched by the officers of Enforcement Directorate on 14.9.1993 and some incriminating documents and Ross. 58,000/ were recovered and seized. On the basis of the said documents, statements of various persons were recorded, who deposed that they had received payments in India on the instructions of their relations residing abroad. Rameshwar Dass Gupta, another COFEPOSA detenu, in his statement dated 16.9.1993 recorded under Section 40 of the FERA voluntarily deposed that on 11.9.1993 at 4.00 p.m. three persons came to their Sankriti Bhawan Office, New Delhi, in a Fiat Car having registration number of Punjab and a sum of Rs. fifty lacs was handed over to them in cloth bag by one J.P. Gupta in his presence. He further deposed that J.P. Gupta had told him on 1.3.9.1993 that the three persons of Kapil Dutt Bali who had collected Rs. fifty lacs on 11.9.1993 were arrested on 12.9.1993 in Punjab and that was the same payment which was handed over to the men of petitioner. In his statements dated 6/7.4.1994 recorded under Section 40 of FERA, Prem Parkash, another COFEPOSA detenu deposed that the amount of Rs. 50 lacs which was recovered and seized from the men of petitioner i.e. Suram Singh and Deep Chand, was belonging to him (Prem Parkash) and was handed over to the men of petitioner in his cabin through J.P. Guptas to whom the said payment was made by Rameshwar Dass Gupta. It is, thus, the case of respondent that the grounds of detention were very relevant as far as petitioner was concerned. In their statements, both Suram Singh and Deep Chand stated that they were working for petitioner which fact was also corroborated by recovery of one visiting card of petitioner from Jamatalashi of Deep Chand. These persons also stated that the petitioner was engaged in distribution of payments in India to those persons whose relations were abroad and this fact was also corroborated by the recovery of incriminating documents from his business premises. Even though the petitioner has denied his connection with any of these persons but the incriminating documents recovered from his business premises, and statements of various persons recorded, as mentioned in the grounds of detention, proved that he was engaged in illegal foreign exchange transactions. One Tarsem Singh of Tanda Urmar vide his letters dated 6.10.1993 and 18.11.1993 requested for release of Rs. 50 lacs. The Assistant Director of Enforcement, Jalandhar, vide his letter dated 31.1.1994 sent reply to Tarsem Singh and he was also summoned in the office of Enforcement Directorate, Jalandhar, but he did not appear. The detaining authority passed the detention order after considering the merits of the case and material on record. It is also pleaded that detention order had nothing to do with the anticipatory bail and there was no delay in passing the detention order.

Insofar as reply to addl. grounds seeking quashing of detention order is concerned, the same shall be dealt with while dealing with the contentions raised by learned counsel for the petitioner. Suffice it, however, to say that the Union of India filed reply to the additional grounds taken and denied if any such ground was made out for quashing the detention order.

Even though number of grounds seeking quashing of the detention order have been pleaded but Mr. M.S. Rakkar, learned Senior Advocate, arguing on behalf of the petitioner has raised the following points for consideration and it is while dealing with the said points that some specific grounds so pleaded in the petition have been referred to. Obviously, the decision is invited not on all the grounds that have been pleaded but on limited grounds as detailed below :

(i) delay in passing the order of detention;

(ii) delay in execution of order of detention;

(iii) delay in deciding the representation;

(iv) 57 pages of the grounds of detention being illegible, thus, depriving the petitioner to make a meaningful representation;

(v) once Suram Singh and Deep Chand had retracted from their statements in September, 1993, this point should have been considered by the detaining authority; and lastly that

(vi) these persons were tortured before they gave their statements. They were not even medically examined.

While dealing with the first point, noted above, learned counsel for the petitioner contends that recovery of Rs. fifty lacs was effected on 12.9.1993 whereas detention order was passed on 6.5.1994. There is, thus, a delay of nearly eight months and this delay in itself would be fatal to the detention order. For his aforestated contention, learned counsel relies on a Single Bench judgment of this Court in Kimti Lal v. Secretary to Govt. of Punjab, 1994(1) RCR 581. This Court, after hearing the learned counsel and going through the records of the case is, however, unable to accept the contention of the learned counsel that simply because there is a delay in prejudicial activity alleged against a person and the order of detention this in itself would be fatal and detention order shall have to be quashed. Delay would be fatal only if it has not been satisfactorily explained. In the case relied upon by the counsel itself it has been held that "quashment of order of detention on the ground of delay between the prejudicial activity and the order of detention is not a rigid or mechanical test by merely counting the number of months. The Court should examine whether the detaining authority has satisfactorily explained the delay." The crucial question, thus, in the present case is as to whether the respondent has explained the delay between prejudicial activity and the detention order. While explaining the delay in the written statement it has been pleaded that codetenus of the petitioner were apprehended by the police on 12.9.1993 and their voluntary statements were recorded on 13.9.1993 and 14.9.1993. Thereafter statements of about 15 persons in this connection were recorded by Delhi Branch of Enforcement Directorate on different dates. Other investigations were also conducted by the Enforcement Director at Jalandhar and at Delhi. The last statement was recorded on 6.4.1994 in Delhi. It is further pleaded that it took a lot of time as the persons involved in the racket went underground and were not easily available. Petitioner himself appeared before the Directorate Enforcement, Jalandhar, in the middle of November, 1993 i.e. after about two months after repeated summons were issued to him. Statements and other documents which were in Punjabi and Hindi were translated and fairly typed and then the grounds of detention were formulated for supplying the same to the petitioner. It is further the case of respondent that time was consumed in recording the statements, conducting investigation and translating voluminous records and it took a lot of time to go through 1596 pages minutely before passing the detention order. In the grounds of detention, Annexure P2, long detail datewise has been given as to what was all going on between the prejudicial activity and the order of detention. A reading thereof clearly makes it out a case that at no given time the respondent was sleeping over the matter. In paragraph 45 of the grounds of detention it is mentioned that the residential premises of Shri J.P. Gupta at B1865, Shastri Nagar, New Delhi and his office table in the office of M/s Madan Mohan Lal Shri Ram Pvt. Ltd. was searched by the officers of Enforcement Directorate New Delhi, on 16.9.1993 resulting in seizure of documents as per details given in respective panchnamas dated 16.9.1993. Shri J.P. Gupta was not present at the time of search. Statement of Smt. Madhu Gupta wife of Shri J.P. Gupta was recorded on 16.9.1993 under Section 30 of the FERA wherein she, inter alia, stated that her husband Shri J.P. Gupta was working as Executive Officer in MMSR Associates, Jhandewalan, New Delhi, for the last 15 years and that her husband left for office at 9.15 a.m. on 15.9.1993 and told her that he was going out of station for some office work on telephone from his office. On 16.9.1993 the officers of Enforcement Directorate searched her residence and seized two loose sheets and one photograph vide panchnama dated 16.9.1993. Statement of Smt. Madhu Gupta was further recorded on 28.10.1993, 21.1,1994, 24.1.1994 under section 40 of the FERA wherein she, inter alia, stated that her husband Shri Joginder Prasad Gupta was not coming to the residence since last one month. On being asked, she stated that she knows Shri Rameshwar Dass Gupta very well and that he was working with her husband. Again on being asked, she stated that her husband in those days was in Calcutta and she did not know his address. She further made a statement on 24.1.1994 and furnished a photo copy of letter dated 16.10.1993 whereby services of her husband were terminated. Summons under section 40 of FERA were issued to Shri J.P. Gupta for his appearance before the Enforcement Officer on 16.9.1993, 21.9.1993 and 7.10.1993. He, however, did not appear on the afore mentioned dates. On 29.10.1993 the Enforcement Directorate filed a complaint under section 56 of FERA against Shri J.P. Gupta for noncompliance of the said summons issued to him in the Court of Addl. Chief Metropolitan Magistrate, New Delhi. The Court fixed the case for 30.1.1993. Meanwhile, Shri J.P. Gupta moved the court of Addl. Sessions Judge, New Delhi on 5.1.1993 for grant of anticipatory bail. The case was fixed for hearing on 8.11.1993 when his petition for bail was dismissed. Shri J.S. Arora, Advocate, sent a letter dated 6.12.1993 addressed to the Director of Enforcement, New Delhi enclosing therewith an affidavit of Shri J.P. Gupta and making certain allegations against the officers of the Enforcement Directorate. Assistant Director, Enforcement Directorate, New Delhi denied the allegations vide reply dated 10.12.1993. On 30.11.1993 Shri J.P. Gupta did not appear in the Court of A.C.M.M., New Delhi and the case was fixed for 25.1.1994, Shri Gupta did not appear in the Court of A.C.M.M. on 25.1.1994. However, an application under section 245(2) Cr.P.C. for discharge of J.P. Gupta was filed and the case was fixed for 16.2.1994. Shri J.P. Gupta did not appear again on 16.2.1994 and his wife filed an application in the Court of ACMM on 16.2.1994. Assistant Director, Enforcement Directorate, New Delhi vide reply dated 11.4.1994 addressed to Smt. Madhu Gupta denied the allegations contained in her application dated 16.2.1994. The case was fixed for 5.4.1994. On 31.3.1994 Smt. Madhu Gupta made an application in the Court of ACMM, New Delhi to inform that J.P. Gupta was detained in Tihar Jail and she prayed that statement of J.P. Gupta may be recorded. On 5.4.1994 the Court of ACMM, New Delhi ordered the case to come up for precharge evidence on 19.4.1994 and arguments on application under section 254(2) Cr.P.C. On 19.4.1994 Shri J.P. Gupta filed an application in the Court of ACMM and the case was fixed for 25.4.1994. Enforcement Directorate filed their replies to the application under section 245(2) Cr.P.C. and application dated 19.4.1994 of Shri J.P. Gupta. The case was fixed on 3.5.1994 on which date arguments were partly heard and the Court fixed the case for remaining arguments on 11.5.1994. Mr. Gupta was, however, remanded to judicial custody till then. An advance copy of petition dated 9.11.1993 filed in the High Court of Delhi for anticipatory bail to J.P. Gupta was received in the office of Enforcement Directorate, New Delhi. However, no, notice of Delhi High Court was receive in this regard. Second application for grant of anticipatory bail to Shri J.P. Gupta was moved or 2.5.1994 in the Court of Addl. Sessions Judge, New Delhi. The case was fixed for 3.5.1994 when it was adjourned to 6.5.1994.

There are further details also given in the grounds of detention which clearly show the way and manner in which the respondent moved in the matter. If at all there was some delay in passing the order of detention, that was for the reasons recorded above. From the explanation furnished in the written statement supported by grounds of detention, Annexure P2, it is clear that the order of detention was passed only when the respondentauthorities were convinced that prejudicial activities were indulged in by the petitioner and with a view to arrive at the aforesaid conclusion, all necessary steps were promptly taken. If in the process, the persons concerned who were required to be interrogated, were evading appearance before the authorities concerned or were agitating the matter in various courts, it cannot be said that respondentauthorities delayed the matter, thus, resulting into snapping of live link between prejudicial activity and detention order. The Supreme Court in Rajesh R. Khushlani v. Mahendra Prasad, 1993 SCC (Cri) 404 held that "delay in 61/2 months in passing the order under COFEPOSA Act from the date of recording statement of detenu when after recording the statement of detenu, several documents were collected from bank and statements of Bank Managers were recorded and only thereafter the material was placed before the detaining authority by sponsoring authority and when statement made in. Founds of detention that allegations contained therein were based on documents and information furnished by the banks and bank managers from time to time, was not un due". In the aforesaid case the delay in passing, the detention order was only one month from the date of recording of last statement. This contention of the learned counsel is, thus, rejected.

Coming to the next point raised by learned counsel for the petitioner, it shall be seen that the order of detention was passed on 6.5.1994 whereas petitioner was actually detained on 24.5.1994. There is, thus, a delay on 18 days. While, however, taking this ground in the petition all that has been mentioned in paragraph 13 is that petitioner was detained on 24.5.1994 as a consequence of detention order, Annexure P1, and there was unexplained delay in implementing the detention order which was passed on 6.5.1994. In the reply it has been stated that there was no delay at all in implementing the detention order. Learned counsel for respondent on the basis of the record available with him submits that all efforts were made to trace the petitioner and the moment he was available, detention order was executed. Delay of 18 days, in the circusmtances aforesaid, hardly provides any ground to the petitioner to ask for quashing of detention order. This argument of learned counsel for the petitioner is also rejected.

The third point on which stress has been laid is with regard to delay in deciding the representation. It is argued that representation was submitted on 2.6.1994 and order was conveyed to the petitioner on 2.6.1994 and order was conveyed to the petitioner on 22.6.1994, There is, thus, a delay of 20 days in rejecting the representation. This ground has been taken in the additional grounds by way of Crl. Misc. No. 82 of 1994. In the additional reply filed on behalf of respondents it has been mentioned that petitioner''s representation date 2.6.1994 forwarded by the Central Jail, Patiala, vide letter of the same dated was received in the COFEPOSA unit of the Ministry on 7.6.1994. The case was put up before the Joint Secretary (COFEPOSA) who directed to call for the comments of the Sponsoring Authority on the representation. The comments of the Sponsoring Authority were called for vide Ministry''s letter dated 9.6.1994. The Sponsoring Authority forwarded the comments vide letter dated 17.6.1994 and the same were received in the COFEPOSA Unit on 20.6.1994. The case was processed and put up before the Joint Secretary (COFEPOSA) on 22.6.1994, who considered and rejected the representation on the same day and petitioner was informed about rejection of his representation vide Ministry''s memo of the same day i.e. 22.6.1994. It is, thus, pleaded that the representation was expeditiously considered, There were five holidays during the said period i.e. 11.6.1994, 12.6.1994, 13.6.1994, 18.6.1994 and 19.6.1994. From the explanation furnished, thus, it shall be clear that there is hardly any delay in deciding the representation of the petitioner and the moment it was received, all necessary steps were taken as expeditiously as possible to decide the same. The Supreme Court in Noor Salman Makani v. Union of India and others, 1994 Crl.L.J. 602 held that "delay of five days by sponsoring authority in forwarding the representation to Ministry''s office after excluding holidays was not undue". The facts of the aforesaid case reveal that the representation of detenu was received late by the Ministry due to postal delay. Parawise comments were made by the Sponsoring Authority. As the representation contained several allegations against customs authorities, necessary information was gathered for offering remarks. The facts further reveal that the representation in the said case was submitted on 15.10.1992 and it was received on 22.10.1992 in Ministry''s office. It was forwarded to the Sponsoring authority on 23.10.1992 who received it on 26.10.1992. After offering parawise reply, the same was sent by speed post to the Ministry''s office on 29.10.1992 which was received by the Ministry''s office on 2.11.1992. The representation was put up before the Joint Secretary on 3.11.1992 and the same was rejected on 4.11.1992. The Finance Secretary recommended the rejection of the representation on 5.11.1992 and finally the Minister of Finance rejected the same on the same day and memo dated 6.11.1992 was issued to the petitioner of the said case intimating him about the rejection. In the aforesaid case it took about 21 days in deciding the representation but all through the matter was moved as expeditiously as possible. No grouse, thus, can be made in the present case as there is a delay on 20 days only in deciding the representation, out of which, as mentioned above, five were holidays.

Coming to the next point raised by learned counsel for the petitioner that 51 pages of the grounds of detention were illegible and, thus, petitioner was deprived to make a meaningful representation, it shall be seen that the said pages are, of course, slightly dim being photostat copies but it cannot be said that the same are not legible at all. One may have to strain a little to read them but to say that these pages cannot at all be read is not correct. Further, now when the petitioner knows all what is mentioned in the said 57 pages, he could well say that on account of the said pages being illegible, he was deprived of taking a particular defence in the representation and in that manner prejudice has been caused to him. Such is, however, not the case of petitioner and on being asked as to on what material out of 57 pages, referred to above, the petitioner was in a position to take any particular defence, learned counsel for the petitioner has not been able to show much. It is, no doubt, true that if copies of some of the documents received by the detenu are not legible, the detention order would be violative of Article 22(5) of the Constitution of India as held by a Single Bench of Delhi High Court in Bhagat Raj v. Union of India and others, 1991(3) RCR 12 but, as mentioned above, the pages said to be illegible are not at all so which could not be read at all. This contention also of the learned counsel for the petitioner is repelled.

The next point raised by learned counsel for the petitioner is that once Suram Singh and Deep Chand had retracted from their statements in September, 1993, this point ought to have been considered by the detaining authority. The argument, in the light of judgment of Supreme Court in Noor Salman Makani v. Union of India and others, 1994(1) Recent Criminal Reports 197 : 1994 Crl.L.J. 602 , has no substance. In Noor Salman Makani''s case (supra) it was held that "when retraction of confession by the detenu is afterthought and the same is not placed before the declaring authority, the subjective satisfaction of the authority was not vitiated". It is positive case of respondent herein gathered from various material that Suram Singh and Deep Chand retracted from their statements as an afterthought.

The last point raised by learned counsel for the petitioner is that Suram Singh and Deep Chand were tortured before they made their statements and they were not even medically examined. This is a question of fact and having been denied by the respondent cannot be gone into by this Court in writ jurisdiction under Article 226 of the Constitution of India. It is by now settled law, reference, however, may be made to Smt. Hemlata Kantilal Shah v. State of Maharashtra and another, AIR 1982 SC 8, that the High Court under Article 226 and the Supreme Court either under Article 32 or under Article 136 do not sit on appeal on the orders of preventive detention. If there be a law of preventive detention empowering the authority to detain a particular offender in order to disable him to repeat his offences, it can do so but it will be obligatory on the part of the detaining authority to formally comply with the provisions of subarticles (5) of Article 22. The High Court under Article 226 and the Supreme Court under Article 32 has to see whether the formalities enjoined by Article 22(5) have been complied with by the detaining authority. If the formalities have been complied with, the Court cannot examine the material before it and find that the detaining authority should not have been satisfied on the material before it and detain the detenu under the Prevention Detention Act, for, that is the function of an appellate Court.

Having found all the points raised by learned counsel for the petitioner to be devoid of merit, there is no choice but for to dismiss the present petition and the same is accordingly dismissed.