SUBHASH POPATLAL DAVE versus UNION OF INDIA & ANR.

Citation: [2013] 17 S.C.R. 596 · Decided: 16-07-2013 · Supreme Court of India · Bench: ALTAMAS KABIR · Disposal: Disposed off

Judgment (excerpt)

A 
8 
(2013] 17 S.C.R. 596 
SUBHASH POPATLAL DAVE 
v. 
UNION OF INDIA & ANR. 
(WRIT PETITION (CRL.) N0.137 OF 2011) 
JULY 16, 2013 
[ALTAMAS KABIR, CJI, GYAN SUDHA MISRA AND J. 
CHELAMESWAR, JJ.] 
Preventive Detention - Test of live nexus in the context 
C of examining the legality of the order of preventive detention 
- If can be _automatically applied to the question of the legality 
of the execution of the preventive detention orders where there 
is a considerable time gap between the passing of the order 
of preventive detention and its execution - Whether the 
D proposed detenues who absconded or evaded the execution 
of the detention order, and subsequently challenged the order 
of detention at the pre-execution stage after a long lapse of 
time could take advantage of non-execution and challenge 
the detention order which remained unexecuted - Held (per 
E majority): The order of detention cannot be quashed and set 
aside merely due to long lapse of time on the specious plea 
that there is no live link between the order of detention and 
the subsequent sit"ation - Where proceedings were initiated 
consequent upon absconding of the proposed detenu, the 
F 
challenge to the detention orders on the live nexus theory is 
impermissible - Permitting such an argument would amount 
to enabling the law breaker to take advantage of his own 
conduct which is contrary to law -
FilL.B circumstances 
specified in Alka Subhash Gadia case are not exhaustive 
grounds on which a pre-execution scrutiny of the legality of 
· G preventive detention order can be undertaken - But it cannot 
be held that such a scrutiny ought to be undertaken with 
1 
reference to the cases of those who evaded the process of 
law - Those who evaded the process of law not to be heard 
H 
596 
SUBHASH POPATLAL DAVE v. UNION OF INDIA 
597 
by the Court to say that their fundamental rights are in 
A 
jeopardy - Conservation of Foreign Exchange and Prevention 
of Smuggling Activities Act, 1974 - ss.6 and 7 - National 
Security Act, 1980 - ss.6 and 7. 
B 
The question which initially arose for consideration 
before this Court in all these matters was whether a 
detention order passed under the provisions of the 
Conservation of Foreign Exchange and Prevention of 
Smuggling Activities Act, 1974 (COFEPOSA) could be 
challenged at the pre-execution stage only on any of the 
C 
five exceptions carved out by this Court in Atka Subhash 
Gadia case, or whether such challenge could be 
maintained on other grounds as well. 
This Court (Bench) vide judgment and order dated 
10.07.2012 held that the order of preventive detention can 
D 
be challenged beyond the five conditions enumerated in 
Atka Subhash_Gadia's case. It was held that the order of 
preventive detention can be challenged beyond the five 
grounds enumerated in the case of Atka Subhash Gadia's 
case at the pre-execution stage. 
E 
However, inasmuch as orders of preventive 
detention either under the COFEPOSA Act or the National 
Security Act, 1980 were pending unexecuted for varying 
periods ranging ·fr.om 2 to 10 years approximately, a· 
further question cropped up for consideration before this 
F 
Court as to whether the proposed detenues who 
absconded or evaded the execution of the detention 
order, and subsequently challenged the order of· 
detention at the pre-execution stage after a long lapse of 
time could take advantage of non-execution and 
G 
challenge the detention order which remained 
unexecuted. 
Whether the test of hive nexus developed by this 
Court in the context of examining the legality of the order 
H 
. 
598 SUPREME COURT REPORTS 
[2013] 17 S.C.R. 
A of preventive detention can be automatically applied to 
the question of the legality of the execution_ of the 
preventive detention orders where there is a 
considerable time gap between the passing of the order 
of preventive detention and its execution was thus the 
8 
question involved in these matters. 
Disposing of the matters, the Court 
HELD: 
Per Gyan Sudha Misra, J. [With Chelameswar, J. 
C concurring] 
1. It is essentially the sufficiency of materials relied 
upon for passing the order of detention which ought to 
weigh as to whether the order of detention was fit to be 
o quashed and set aside and merely the length of time 
and lil_>erty to challenge the same at the pre-execution 
stage which obviated the execution of the order of 
preventive detention cannot be the sole consideration for 
holding that the same is fit to b

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