Justice Kabir breaks decade long tradition of the CJI not dissenting

Justice Kabir breaks decade long tradition of the CJI not dissenting

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 order of preventive detention cannot be quashed at the pre-execution stage merely on the ground that the offender has been absconding, evading arrest or could not be arrested due to inaction of authorities. Justice Kabir, contrary to the decade long tradition of the CJI not dissenting, was found to be in the minority.

While dismissing a bunch of 11 petitions that had raised questions over validity of detention orders passed several years ago, Justice Misra held that "setting aside the order of detention merely on the ground of long lapse of time might lead to grave consequences which would clash with the object and purpose of the preventive detention laws, encouraging the proposed detenu to stay away and twist the arms of law by misusing the provisions to their advantage".

Referring to several unexecuted detention orders passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA ) Act and the National Security Act, Justice Chelameshwar in his separate judgment, concurring with Justice Misra, held that “if preventive detention orders are 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.”

However, Justice Misra 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.

Justice Kabir in his dissenting judgment held that the very purpose of the detention orders were defeated since the sponsoring or the detaining authorities have failed to establish that the proposed detenu continued to indulge in activities enumerated in the detention orders. The fact that 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.

Senior Advocate Mukul Rohatgi appeared for the Appellants, while the State of Maharashtra was represented by Senior Advocate, B H Marlapalle.