REKHA versus STATE OF T NADU TR.SEC.TO GOVT. & ANR.

Citation: [2011] 4 S.C.R. 740 · Decided: 05-04-2011 · Supreme Court of India · Bench: MARKANDEY KATJU · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
B 
(2011] 4 S.C.R. 740 
REKHA 
v. 
STATE OF T NADU TR.SEC.TO GOVT. & ANR. 
(Criminal Appeal No. 755 of 2011) 
APRIL 05, 2011 
[MARKANDEY KAT JU, SURINDER SINGH NIJJAR AND 
GYAN SUDHA MISRA, JJ.] 
Tamil Nadu Prevention of Dangerous Activities of 
c Bootleggers, Drug-Offenders, Forest Offenders, Goondas, 
Immoral Traffic Offenders, Sand Offenders, and Slum 
Grabbers and Video Pirates Act, 1982 - Charge against 
appellant's husband that he was selling expired drugs after 
changing their labels - Detention order under the 1982 Act -
0 
Writ petition challenging the detention order dismissed by 
High Cowt - On appeal, held: In the grounds of the detention 
it was only stated that in similar cases bails were granted by 
the courts and no details. were given about the alleged bail 
order in similar cases - Detention order only contained ipse 
E dixit regarding the alleged imminent possibility of the accused 
coming out on bail and there was no reliable material to this 
effect - Also, the relevant provisions in the Penal Code and 
the Drugs and Cosmetics Act were sufficient to deal with the 
said situation - Thus, the detention order was illegal and 
F cannot be sustained, and is quashed. 
G 
H 
Preventive detention law - Order under -Legality of -
When ordinary law of the land such as Penal Code and other 
penal statutes, can deal with the situation - Held: In such a 
case, recourse to preventive detention law would be illegal. 
Constitution of India, 1950-Artic/e 22(3)(b) - Preventive 
detention - Power of - Held: Must be confined to very naffow 
limits, otherwise the right to liberty would become nugatory -
740 
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REKHA v. STATE OF T NADU TR.SEC.TO GOVT. & 741 
ANR. 
Article 22(3}(b) cannot be read in isolation, but must be read 
A 
along with Articles 19 and 21. 
It is alleged that the appellant's husband was selling 
expired drugs after tampering with the labels and printing 
fresh labels showing them as non-expired drugs. He was 
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detained by a detention order passed under the Tamil 
Nadu Prevention of Dangerous Activities of Bootleggers, 
Drug-Offenders, Forest Offenders, Goondas, Immoral 
Traffic Offenders, Sand Offenders, and Slum Grabbers 
and Video Pirates Act, 1982. The appellant filed habeas 
C 
corpus petition challenging the said detention order. The 
High Court dismissed the ,petition. Therefore, the 
appellant filed the instant appeals. 
Allowing the appeals, the Court 
HELD: 1.1 Article 22(3)(b) of the Constitution of India 
. which permits preventive detention is only an exception 
to Article 21 of the Constitution. An exception is an 
exception, and cannot ordinarily nullify the full force of 
D 
the main rule, which is the right to liberty in Article 21 of E 
the Constitution. Fundamental rights are meant for 
protecting the civil liberties of the people, and not to put 
them in jail for a long period without recourse to a lawyer 
and without a trial. Thus, Article 22 cannot be read in 
isolation but must be read as an exception to Article 21. 
F 
An exception can apply only in rare and exceptional 
cases, and it cannot override the main rule. Article 21 is 
the most important of the fundamental rights guaranteed 
by the Constitution of India. Right to liberty guaranteed 
by Article 21 implies that before a person is imprisoned 
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G 
a trial must ordinarily be held giving him full opportunity 
of hearing, and that too through a lawyer, because a 
-1ayman would not be able to properly defend himself 
except through a lawyer. [Paras 13, 14, 15 and 16] [753-
D-E; .753-G; 754-A-C-D] 
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742 
SUPREME COURT REPORTS 
[2011] 4 S.C.R. 
A 
AS. Mohd. Rafi vs. State of Tamilnadu AIR 2011 SC 308; 
Md. Sukur Ali vs. State of Assam JT 2011 (2) SC 527 -
referred to. . 
R vs. Secy. of State for the Home Dept., Ex Parle Stafford 
B (1998) 1 WLR 503 (CA) Powell v. Alabama 287 U.S. 45 
(1932) - referred to. 
1.2. Article 22(1) of the Constitution makes it a 
fundamental right of a person detained to consult and be 
defended by a lawyer of his choice. But Article 22(3) 
C specifically excludes the applicability of clause (1) of 
Article 22 to cases of preventive detention. Therefore, the 
power of preventive detention must be confined to very 
narrow limits, otherwise the great right to liberty would 
become nugatory. Article 22(3)(b) cannot be read in 
D isolation, but must be read along with Articles 19 and 21. 
[Paras 18 and 22] [754-F-G] 
State of Maharashtra and Ors. vs. Bhaurao Punjabrao 
Gawande (2008) 3 SC
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