STATE OF MAHARASHTRA & ORS. versus BHAURAO PUNJABRAO GAWANDE

Citation: [2008] 3 S.C.R. 967 · Decided: 03-03-2008 · Supreme Court of India · Bench: C.K. THAKKER · Disposal: Case Allowed

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

Judgment (excerpt)

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[2008] 3 S.C.R. 967 
STATE OF MAHARASHTRA & ORS. 
v. 
BHAURAO PUNJABRAO GAWANDE 
(Criminal Appeal No. 417 of 2008) 
MARCH 3, 2008 
(C.K. THAKKER AND ALTAMAS KABIR, JJ.] 
Preventive Detention: 
A 
B 
Detention order - Challenge to, at pre-execution or pre-
arrest stage·- Held: Writ court cannot set aside the detention C 
order at pre-execution or pre-arrest stage unless court is 
satisfied that there are exceptional circumstances - In such 
cases, jurisdiction is based on suspicion - Action is taken to 
prevent the person from acting in any manner prejudicial to 
certain activities under the Detention Law - Ordinarily detenu . D 
cannot seek writ of mandamus if he does not surrender and is 
not served with detention order and its grounds - On facts, 
detaining authority arrived at subjective satisfaction while 
passing detention order for indulging in black marketing of 
kerosene - Order was not passed for a wrong purpose, Detenu · E 
absconded and grounds could not be served - Thus, High 
Court erred in quashing the detention order at pre-execution 
stage - Order of High Court set aside - Prevention of Black 
Marketing and Maintenance of Supplies of Essential 
Commodities Act, 1980 :.._ Constitution of India, 1950 - Article F 
226. 
Detention order - Subjective satisfaction of Detaining 
Authority- Judicial review- Scope of- Held: Court can always 
examine whether subjective satisfaction is arrived at by the 
Detaining Authority- If it is not, the exercise of power would be G 
bad - Court cannot go into correctness of facts stated or 
·allegations leveled - It is to investigate into circumstances of 
suspicion on which such anticipatory action was based. 
967 
H 
968 
SUPREME COURT REPORTS 
[2008] 3 S.C.R. 
A 
Preventive Detention - Meaning and concept of 
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The respondent was engaged in the business of 
transportation of petroleum products. He was indulging 
in black marketing of kerosene oil which was an essential 
B 
commodity. Several cases were registered against him 
under the Essential Commodities Act, 1955. Respondent 
executed a bond under the Code of Criminal Procedure, 
1973 for good behaviour. Despite that, he continued to 
indulge in black marketing of kerosene. The appellant 
no.2-Commissioner of Police passed detention order 
c under the Prevention of Black Marketing and Maintenance 
of Supplies of Essential Commodities Act, 1980 and 
directed that the respondent be detained. The grounds 
of detention were sought to be served to the detenu on 
the same day. The detention order was approved by the 
D State Government. Detenu came to know about the 
• 
detention order passed against him and absconded 
t 
himself and thus, he could not be detained nor served 
with the detention order. Respondent-detenu neither 
submitted to the detention order nor surrendered and filed 
E writ petition for quashing and setting aside the detention 
order being illegal, unwarranted and initiated by malafide. 
The High Court set aside the detention order. Hence the 
present appeal. 
Appellant-State contended that the High Court erred 
.. 
F in exercising jurisdiction under Article 226 of the 
Constitution against an order of detention at a pre-
y 
ex~cution stage; that the preliminary objection raised by 
the Detaining Authority was well founded; that High Court 
ought to have taken into consideration that the order could 
G not be served upon the detenu; that the detenu 
absconded himself and successfully avoided service of 
order of detention, grounds of detention and relevant 
documents in support of the order, therefore, the 
~ .... 
authorities were constrained to affix the order at a 
H conspicuous place of residence of the detenu; that 
STATE OF MAHARASHTRA & ORS. v. BHAURAO 
969 
PUNJABRAO GAWANDE 
several cases had been instituted against the detenu A 
under the 1955 Act; that the consistent conduct of the 
detenu revealed that he continued to indulge in black 
marketing activities; that the preventive action was called 
for; that the High Court was not right in observing that 
there was 'custodial violence' by police authorities when s 
he was arrested in connection with a criminal matter and 
the same does not make detention order vulnerable; that 
the High Court was not right that no other steps had been 
considered by the Authorities; and that the detenu was 
directed to execute a bond of good behaviour and such c 
bond was executed by him. 
Respondent-detenu 
contended 
that in 
an 
appropriate

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