DEEPAK BAJAJ versus STATE OF MAHARASHTRA & ANR

Citation: [2008] 15 S.C.R. 1062 · Decided: 12-11-2008 · Supreme Court of India · Bench: ALTAMAS KABIR · Disposal: Case Allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
c 
D 
E 
F 
G 
H 
[2008] 15 S.C.R. 1062 
DEEPAK BAJAJ 
II. 
STATE OF MAHARASHTRA & ANR 
(Writ Petition (Crl.) No. 77 of 2008) 
NOVEMBE.R 12, 2008 
[ALTAMAS KABIR AND MARKANDEY KAT JU, JJ.] 
. Preventive Detention: 
Detention order - Challenge to, at pre-execution stage 
- Maintainability of - Held: Court can set aside the detention 
order at pre-execution stage if it is satisfied that the detention 
order was clearly illegal - Five grounds in Alka Subhash 
I 
Gadia's case for quashing detention order at pre-execution 
stage are illustrative and not exhaustive - On facts, there was 
failure to place retraction of confession of alleged witnesses 
and other materials before Detaining Authority -Thus, 
detention order stands vitiated and quashed - Constitution of 
India, 1950 - Articles 21 .and 32 - Conservation of Foreign 
Exchange and Prevention of Smuggling Activities Act, 1974 
-s. 3(1). 
Detention order - Relevant materials - Non-placement 
of, before Detaining Authority - Effect of - Held: Would vitiate 
the detention order. 
Constitution of India, 1950: 
Article 21 -
Right of life and liberty -
Held: Is a 
fundamental right - It should not be lightly transgressed. 
Articles 32 and 226 - Issuance of writs by Supreme Court 
and High Court - Power of - Explained: 
Precedent: Reliance on - Held: Judgment of courts is 
1062 
. I 
~ 
·r_,. 
>-
DEEPAK BAJAJ v. STATE OF MAHARASHTRA & ANR. 
1063 
-.,. 
not a statute and hence cannot be construed as such - It is A 
not to be read mechanically as. Euclid's theorem nor as if it 
was a statute. 
The question which arose for consideration in this 
petition was whether the instant petition challenging the 
B 
detention order at pre-execution stage was maintainable; 
and whether the failure to place retraction of confession 
before the detaining Authority would vitiate the detention 
order. 
Allowing the writ petition, the Court 
c 
HELD: 1.1 The five grounds mentioned in Smt. Alka 
Subhash Gadia's case on which the court can set aside 
the detention order at the pre execution stage are, (i) that 
the detention order is not passed under the Act under D 
which it is purported to have been passed, (ii) that it is 
sought to be executed against a wrong person, (iii) that . 
it is passed for a wrong purpose, (iv) that it is passed on 
vague, extraneous and irrelevant grounds or (v) that the 
authority which passed it had no authority to do so. The 
E 
said grounds are only illustrative not exhaustive. [Para 5 
and 6] [1072-E-F; 1073-A] 
Additional Secretary to the Government of India and Ors. 
... 
~ 
vs. Smt. Atka Subhash Gadia and Anr., 1992 (Suppl.1) SCC 
496, referred to. 
F 
1.2. A judgment of a Court is not to be read 
mechanically as a Euclid's theorem nor as if it was a 
statute. A judgment is not a statute, and hence cannot be 
construed as such. In Smt. Alka Subhash Gadia's case 
this Court only wanted to lay down the principle that G 
~ 
entertaining a petition against a preventive detention 
order at a pre- execution stage should be an exception 
and not the general rule. The said proposition is 
concurred with. However, it would be an altogether 
different thing to say that the five grounds for entertaining 
H 
1064 
SUPREME COURT REPORTS 
[2008] 15 S.C.R. 
A such a petition at a pre execution stage mentioned in Smt. 
Alka Subhash Gadia's case are exhaustive. They are 
illustrative and not exhaustive. [Paras 7 and 16] [1073-B; 
1076-D-E] 
Additional Secretary to the Government of India and Ors. 
B vs. Smt. Alka Subhash Gadia and Anr. 1992 (Suppl.1) SCC 
496; Ambica Quarry Works vs. State of Gujarat and Ors. 
(1987) 1 SCC 213; Bhavnagar University vs. Palittana Sugar. 
~-
Mills Pvt. Ltd. (2003). 2 SCC 111; Bharat Petroleum 
Corporation Ltd. and Anr. vs. N.R. Vairamani & another AIR 
C 2004 SC 4778; Sarva Shramik Sanghatana (K. V.), Mumbai 
vs. State of Maharashtra & Ors. AIR 2008 SC 946 and 
Government of Karnataka and Ors. vs. Gowramma and Ors. 
AIR 2008 SC 863, referred to. 
0 
Quinn vs. Leathern, 1901 AC 495; London Graving D()ck . 
Co. Ltd. vs. Horton 1951 AC 737; Home Office vs. Dorset · 
Yacht Co. 1970·(2).All ER 294 and Herrington vs. Bfitish. · 
Railways Board 1972 (2) WLR 537, referred to. 
· · 
·' 
1.3. Every pe~son has a fundamental. right of liberty . 
. . . t
E · vide Article 21 of the Com;titution. Article 21; which ~gives · 
the right of life and liberty,·is the most fulidamentat·of an·· 
the Fundamental Rights in the Constitution. Though, no . · .. ·

Excerpt shown. Read the full judgment & AI analysis in Lexace.