KANCHANLAL MANEKLAL CHOKSHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) 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. 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. The substantial question of law so certified was 'whether it is necessary for the detaining authority to consider whether a person should be prosecuted before an order of detention is made against him'. The Division Bench of the Gujarat High Court in rejecting the particular contention of the appellant purported to follow an earlier decision of another Division Bench of the same Court in Ashok Murlidhar v. State of Gujarat, Spl. Criminal Appln. No. 230 of 1978. In that case Divan C. J., and Majumdar, J., though inclined to the view that the possibility of a criminal prosecution being a launched should be present to the mind of the detaining authority felt constrained to hold otherwise because of what, they though, had been decided by this Court in Haradhan Saha v. State of West Bengal, (1975) 1 SCR 778. In our view, this Court did not say in Haradhan Saha v. State of West Bengal that the possibility of a prosecution being launched was an irrelevant consideration which need never be present to the mind of the detaining authority. On the other hand, we do not also think that it is axiomatic, as sought to be contended by the learned counsel for the appellant, that the detaining authority must invariably consider the possibility of launching a prosecution before making an order of detention and that, if not, the order of detention must necessarily be held to be bad.

(2.) In. Haradhan Saha v. State of West Bengal, the vires of the provisions of the Maintenance of Internal Security Act was in question. One of the contentions was that Section 3 of the Act offended Article 14 of the Constitution as it permitted 'the same offence to be a ground for detention in different and discriminatory ways'. It was submitted that while A might be prosecuted but not detained preventively, B might not be prosecuted but only detained preventively and C might be both prosecuted and detained preventively. Dealing with the contention, a Bench of five Judges of this Court explained the basic distinction between preventive detention and detention following upon conviction and observed:

(3.) In Bhutnath v. The State of West Bengal, (1974) 3 SCR 315, Krishna Iyer and Sarkaria JJ., declared the detention illegal for denial of opportunity to make effective representation. On the question whether the failure of criminal prosecution was a bar a preventive detention the answer was a definite 'no'. The learned Judges however expressed an 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 consideration, 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 not considered by the learned Judges.