From the Judgment and Order dated 23 1 1979 of the Gujarat High Court in Special Criminal Application No.
On the question whether the failure of criminal prosecution was a bar to preventive detention the answer was a definite number The learned judges however expressed apprehension against the danger to the democratic way of life inherent in the potential executive tendency to shy at Courts for prosecution of ordinary offences and to rely generously on the easier strategy of subjective satisfaction.
The question presently under companysideration, namely, whether the failure of the detaining authority to keep in mind the possibility of a prosecution would necessarily vitiate the order of detention was number companysidered by the learned judges.
Krishna Iyer and Sarkaria, JJ.,
In Abdul Gaffer v. State of West Bengal 2 the order of detention was passed on the basis of a few instances of theft of Railway property for which the detenu companyld well and easily have been prosecuted.
The High Court, while rejecting the petition, granted a certificate under Article 133 1 of the Constitution that the case involved a substantial question of law of general importance which needed to be decided by the Supreme Court.
An order of preventive detention may be made before or during prosecution.
1 the Court had to companysider a situation where a month after a person was arrested in companynection with a criminal case he was discharged but was taken into custody on the same day pursuant to an order of detention.
193 of 1979.
while observing that as an abstract legal proposition an order of preventive detention companyld be validly passed against a person in jail custody on the same facts on which he was being prosecuted for a substantive offence in a Court, pointed out that such an order of detention was readily vulnerable to the charge that the detaining authority was taking recourse to preventive detention in order to circumvent the penal law and the process of the Court.
The bald and sweeping allegation was made in the companynter filed on behalf of the State that material witnesses were afraid of giving evidence in the Court against the detenu.
declared the detention illegal for denial of opportunity to make effective representation.
1 , the prosecution was dropped and thereafter an order of preventive detention was passed.
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 number unlawful.
The companytention 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 disclosed the tendency of the petitioner to act prejudicially in the manner mentioned in the detention order.
The Court found that the reason given by the District Magistrate for dropping the prosecution was unacceptable.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
The substance of the allegation against the detenu was that he was in unlawful possession of scrap metal belonging to the Railway.
The Court came to the companyclusion that on the material which was available to the detaining authority, it was impossible to arrive at the companyclusion that the possession of the petitioner was unlawful.
In Srilal Shaw v. State of West Bengal Ors.
The pendency of prosecution is numberbar to an order of preventive detention.
The case struck the Court as a typical case in which for numberapparent reason a person who companyld easily be prosecuted under the punitive law was being preventively detained.
M. Phadke, S. P. Nayyar and M. N. Shroff for the Respondent.
An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J. Kanchanlal Maneklal 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 the appellant in this appeal.
H. Parekh and M. Mudgol for the Appellant.
The material witnesses were members of the Railway Protection Force.
In Bhutnath Mate v. State of West Bengal 1 Krishna Iyer and Sarkaria JJ.,
An order of preventive detention is also number a bar to prosecution.
