ADDITIONAL SECRETARY TO THE GOVERNMENT OF INDIA AND ORS . versus SMT. ALKA SUBHASH GADIA AND ANR.

Citation: [1990] SUPP. 3 S.C.R. 583 · Decided: 20-12-1990 · Supreme Court of India · Bench: A.M. AHMADI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

... 
ADDITIONAL SECRETARY TO THE GOVERNMENT OF 
INDIA AND ORS . 
v. 
SMT. ALKA SUBHASH GADIA AND ANR. 
DECEMBER 20, 1990 
[A.M. AHMADI, P.B. SAWANT AND S.C. AGRAWAL, JJ.] 
Constitution of India, 1950: Articles 14, 19, 21 and 22-Liberty 
of a person-Deprival of-Whether permissible without apprising 
grounds of arrest-Whether State required to disclose facts in advance. 
Articles 32 and 226--Jurisdictionary powers of judicial review-
Whether Courts could refuse to exercise-Non-interference with the 
termination order at pre-execution stage-Whether amounts to aban-
donment of power and denial to the proposed detenu remedy of judicial 
review and right to challenge the order. 
Conservation of Foreign Exchange and Prevention of Smuggling 
Activities Act, 1974: Section 3( /)-Detention order-Whether could be 
challenged before arrest of proposed detenu-Whether proposed detenu 
A 
B 
c 
D 
or somebody on his behalf entitled to the order prior to its execution at 
least to verify whether it could be challenged on limited grounds 
available-Whether the order and grounds to be served on the proposed 
E 
detenu in advance. 
An order of detention passed against the first respondent's 
husband under Section 3(1) of the Conservation of Foreign Exchange 
and Prevention of Smuggling Activities Act, 1974 could not be served on 
the proposed detenu as he was absconding. Hence a declaration was 
F 
made that he was a person who fell within the category mentioned in 
Section 2(b) of the Smugglers and Foreign Exchange Manipulators 
(Forfeiture of Property) Act, 1976. Thereafter, a notice was issued to 
him under sub-section (1) of section 6 of the SAFEMA to show cause as 
to why the properties mentioned in the schedule to the notice should not 
be forfeited to the Central Government. A copy of the notice along with G 
the schedule and the copy of the reasons for forfeiture was also sent to 
the first respondent. 
The first respondent filed writ petition in the High Court chal-
lenging the detention order as well as the show cause notice. 1'he High 
Court held that the writ petition was maintainable for challenging the H 
583 
A 
B 
c 
D 
E 
F 
G 
H 
584 
SUPREME COURT REPORTS 
[ 1990] Supp. 3 S.C.R. 
detention order even though the detenu was not served with the order 
and had thus not surrendered to the authorities, that the detention 
order, the grounds of detention, and the documents relied upon for 
passing the detention order be furnished to the detenu, and to the 
counsel for the first respondent and that they should also be produced 
before the court. 
A day before the matter was to come for directions an affidavit 
was filed on behalf of the appellants stating that under Article 22( 5) of 
the Constitution the grounds of detention had to be given to the person 
when he was detained, and therefore, the detaining authority could not 
be compelled to furnish the documents to anybody else other than the 
detenu, after he was detained. However, the authority was willing to 
produce the documents for the perusal of the Court without showing them 
first to the first respondent. Finding that the appellants had not made any 
application for any extension in time to carry out the orders of the 
Court, nor made any statement expressing their difficulty to comply 
with the order, the High Court held that the officers were guilty of 
contempt of court, and directed the matter to be listed for taking 
appropriate action for contempt of court. At that stage, Special Leave 
Petitions were filed before this Court. 
It was contended on behalf of the appellants that since the deten-
tion law was constitutionally valid, the order passed under it could be 
challenged only in accorJance with the provisions of, and the procedure 
laid down, by it, and the High Court and this Court should not exercise 
their extraordinary jurisdiction in a manner which would enable a 
party to by-pass the machinery provided by the law, that unlike the 
order passed under other laws, the detention order if stayed or not 
allowed to be executed would be frustrated and the very object of the 
detention law would be defeated, and therefore, the detention order 
should in no case be allowed to be challenged before it was executed and 
the detenu was taken in custody; besides the detention jurisdiction 
being essentially a suspicion jurisdiction, the concept of complete 
justice was alien to detention law; the liberty guaranteed by Article 21 
of the Constitution was subject t

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