UNION OF INDIA AND ORS. versus ATAM PARKASH AND ANR.

Citation: [2008] 16 S.C.R. 607 · Decided: 25-11-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SUPREME COURT REPORTS 
[2008] 16 S. C.R. 
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*Additional Secretary:1to· the Govt. of India and Ors. v. 
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Smt. Alka Subhash. Gadia and Anr. 1992 Supp (1) SCC 496; 
Administration of NCT Delhi v. Prem Singh 1995 Supp (4) 
SCC 252; Sayed Tahet Bawamiya v; Joint Secretary 2000 (8) 
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SCC 630; Union of India and Ors. v. Par~smal Rampuria 1998 
B (8) SCC 402; Sunil Fulchand Shah v. Union of India and Ors. 
2000 (3) SCC 409; Hare Ram Pandey v. State of Bihar and 
Ors. 2003 (10) JT 114; Union oflndia v. Amritlal Manchanda 
and Ors. 2004 (3) sec 75 and Union of India and Ors. v. Vidya 
Bagaria 2004 (5) sec 577, relied on. 
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1.2. The impugned judgment of the High Court is 
clearly unsustainable and is set aside. The question is as 
to whether itwou.ld be desirable to take the respondents 
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back fo custody. Such a decision shall be taken by the 
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Government .within two months. [Para 1 O] [613-G] 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 
No. 1870 of 2008 
·From th~ final Judgment and Order dated 12.9.2005 of the 
E High Court of Punjab and Haryana at Chandigarh in Crl. W.P. 
No. 1185 of 2004. 
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Gopal Subramaniam, A.S.G ... Ms. Aruna Gupta, B.K. 
Prasad and P. Parmeswaran for the Appellants . 
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Ravi Shankar Prasad, ChetanDayal, Nikhil Jain andAjay 
· Pal for t~e Respondents. 
The Judgment of the Court was delivered by 
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DR. ARIJIT PASAYAT, J. 1. Leave granted. 
2. Ghallenge in this appeal is to the judgment of a learned 
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Sirigte'Judge of the Punjab andHaryana High Court allowing 
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ttie Writ Petition filed by the respondents. Prayer in the writ 
petition was to quash the detention order dated '1o.5.1_993 .• 
H Stand ofthewrit petitioners before the High Court was that a . 
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UNION OF INDIA AND ORS. v. ATAM PARKASH .A.ND 
609 
ANR. [DR. ARIJIT PASAYAT, J.] 
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petition.for preventing the respondents in the writ petition from A 
enforcing the said order was disposed of by order dated 
19.7.2002 in Criminlll Writ Petition No. 1408 of 1999. The 
respondents in the writ petition opposed the same taking the 
stand that in some other cases the High Court had taken the, 
view that once the order had become infructuous by lapse of B 
time, a different yardstick should not have been applied. In the 
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case at hand, the writ petition was, therefore, allowed with the 
following observations: 
"In view of the above, this petition is allowed and the c 
respondents are restrained from enforcing order dated 
10.5.1993. They will however be at liberty to pass any fresh ·. 
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order, if so required, and take appropriate action thereafter 
in accordance with law." 
3. Learned counsel for the appellants submitted that the D 
judgment of the High Court is contrary in terms. If on one hand 
it was held that the order dated 10.5.1993 had become 
infructuous, there was no question of granting a liberty to pass 
a afresh order. It is pointed out that for a considerable length 
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of time the order of stay was in operation. 
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4. In Additional Secretary to the Govt. of India and Ors. 
v. Smt. Alka Subhash Gadia and Anr. case ((1992 Supp (1) 
sec 496), it was held that courts under Articles 226 and 32 
of the Constitution of India, 1950 (in short the 'Constitution') can F 
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interfere at the pre execution stage with the detention order only 
if they are satisfied that : 
(i) 
the impugned order is not passed under the Act 
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under which it is purported to have been passed; 
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(ii) 
it is sought to be executed against a wrong person; 
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(iii) 
it is passed for a wrong purpose; 
(iv) 
it is passed on vague, extraneous and vexatious 
grounds; or · 
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610 
SUPREME COURT REPORTS 
[2008] 16 S.C.R. 
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(v) 
the authority which passed it had no authority to do 
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so. 
. 5 .. ·The position has been re-iterated in Administration of 
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NCT Delhi v. Prem Singh (1995 Supp (4) SCC 252) .and 
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Sayed Taher Bawamiya v. Joint Secretary (2000 (8) SCC 630). 
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6. The question whether the detenu or any one or:i his 
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behalf is entitled to challenge the detention order without the 
detenu submitting or surrendering to it has been examined by 
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this Court on various occasions. One of the leading judgments 
c on the subject is Smt. Alka Subhash Gadia's case (supra) In 
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para 12 of the said judgment, it was observed by this Court as 
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under: 
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"12. This is not to say that the jurisdiction of the High 
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