KANCHANLAL MANEKLAL CHOKSHI versus THE STATE OF GUJARAT AND ORS.

Citation: [1980] 1 S.C.R. 54 · Decided: 23-07-1979 · Supreme Court of India · Bench: R.S. SARKARIA · Disposal: Dismissed

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Judgment (excerpt)

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54 
KANCHANLAL MANEKLAL CHOKSHI 
v. 
THE STATE OF GUJARAT AND ORS. 
July 23, 1979 
[R. S. SARKARIA, P. N. SHINGHAL AND 0. CHINNAPPA REDDY, JJ.] 
Conservation of Foreign Exchange and Prevention of Sn1uggling Activities 
Act, 1974-Failure of detalning authon"ty to consider possibility of prosecu--
tion bez'ng launched-If could lead t.o the conclusion that it never applied its 
mind-Order of detention if void on that ground. 
In Ashok Murlidhar v. State of Gujarat a Division Bench of the High 
Court thought that this Court in Hardhan Saha & Anr. v. The State of West 
Bengal & Ors., [1975] 1 SCR 778 laid down that where a person \Vas sought 
to be detained preventively the possibility of a prosecution being launched 
was an irrelevant consideration which need never be present to the mind of 
the detaining authority. 
Purporting to follow this decision another Division 
Bench of the High Court rejected the habeas corpus petition of the appellant 
who was in preventive detention under the provisions of 
Conservation of 
Foreign Exchange and Prevention of Smuggling Activities Act, 1974, 
The 
Division Bench certified that a substantial question 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 needed to be decided by 
this Court. 
In appeal to this Court it was contended on behalf of the appellant that 
it was axiomatic that the detaining authority must invariably consider the 
pcssibility of launching a prosecution before making an order of detention, 
in the absence of which the order of detention must be held to be bad. 
Dismissing the appeal, 
iHELD : 1. In Hardhan Saha's case this Court did not say that the possi-
bility of a prosecution being launched was an irrelevant consideration which 
need never be present to the mind of the detaining authority. 
All that wasi 
laid down in that <"ase was that the mere G.ircumstance th&t a detenu was liable 
to be prosecuted was not by itself a bar to the making of an order of pre-
ventive detention. 
It does not follow therefrom that failure to consider the 
possibility of a prosecution being launched cannot ever lead to the conclusion 
that the detaining authority never applied its mind and the order of detention 
was, therefore, bad. [57 F-G] 
2. The principles emerging from a review of the ca9es decided by thi$ 
Court are that the ordinary criminal process is not to be circumvented or 
short-circuited by ready resort to preventive detention, but that the possibility 
of launching a criminal prosecution is not an absolute bar to an 
order 
of 
preventive detention. 
Nor is it correct to say that if such possibility is not 
present to the mind of the detaining authority the order of detention is neces~ 
sarily bad. 
However, the failure of the detaining authority to copsider the 
possibility of launching a criminal prosecution· may, in the circumstances of 
a case, lead to the conclusion that the detaining authority had not applied 
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K. M. CHOKSHI v. GUJARAT (Chinnappa Reddy, !.) 
55 
its mind to the vital question whether it was necessary to make an order of 
preventive detention. . Where an ~xpress allegation is ri:iade that the order of 
detention w;is. issued in a mechanical fashion without keeping present to its 
mind the question whether it was necess~uy to make such an order when an 
ordinary criminal prosecution could well serve the purpose, the 
detaining 
authority must .satisfy the Court that that question too was borne in mind· 
before the order of detention was made. 
If the detaining authority fails to 
satisfy the court that the detaining authority so borne the question in mind 
the court would be justified in drawing the_ inference that there was no appli~ 
cation of the mind of the detaining authority to the vital question whether it 
was necessary to preventively detain the detenu. [60 A-D] 
In the instant case the grounds of detention served on the appellant oon-
taineci a very elaborate statement of facts quite clearly pointing to an appli-
cation of the mind by the detaining authority. The appellant did not complain 
in his petition that the detaining authority had not applied its rpind and in 
particular had not considered the question of the possibility of a prosecution 
nor were there any facts appearing from the record which could lead to the 
conclusion that the detaining authority did not apply its mind to .r

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