SUNIL FULCHAND SHAH v. UNION OF INDIA AND ORS

Citation: [2000] 1 S.C.R. 945

Court: Supreme Court of India

Bench: A.S. ANAND, G.T. NANAVATI, K.T. THOMAS, D.P. WADHWA, S. RAJENDRA BABU

Judgment text

SUNIL FULCHAND SHAH v. UNION OF INDIA AND ORS. FEBRUARY 16, 2000 [DR. A. S. ANAND, CJ. , G. T. NANAVATI, K. T. THOMAS, D. P. WADHWA ANDS. RAJENDRA BABU, JJ. j Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 : Sections 10 and 12 Preventive detention-Period ofdetention--Computation of-Has to be computed from the date of actual detention and not from the date of Detention Order. Preventive detention-Grant of parole-Effect of-Held, parole does not intenupt the period ofdetention-That period should be counted towards the period of detention-Period of detention does not stand automatically extended by any period of parole unless the order of parole or Rules or instTUctions specifically provided for extention of detention. Preventive detentioll-Detention order-Setting aside of by High Court directing release of detenu-011 appeal Supreme Court reversing e"oneous decision ofHigh Court and directing detention ofdetenu-Effect 011 remaining period of detention.

Preventive detention-Parole during-Can be granted as per rules or administrative instTUctions-Detenu should approach the Govemment--ln case ofunjustifiable refusal by government High Court under Article 226 and Supreme Court under Articles 32, 136 and 142 can direct temporary release. Parole and Bail-Distinction betweell-Discussed. In these petitions the questions for consideration are : (i) Whether the period of detention is a fixed period running from the dates specified in the detention order and ending with the expiry of that period or the period is automatically extended by any period of parole granted to the detenu?

(ii) In a case where the High Court allows a habeas corpus petition and directs a detenu to be released and in consequence the detenu is set free and thereafter, on appeal the erroneous decision of the High Court is reversed, is it open to Supreme Court to direct the arrest and detention of the detenu, to undergo detention for the period which fell short or the original period of detention intended in the detention order on account of the erroneous High Court order? Disposing the petitions, the Court HELD : PER CURIAilJ Parole does not interrupt the period of detention and, thus, that period needs to be counted towards the total period of detention unless the terms for grant of parole, Rules or instructions, prescribe otherwise. PER MAJORITY (CJ. , KT. Thomas, D. P. Wadhwa and S. Rajendra Babu, JJ.

) The quashing of an order of detention by the High Court brings to an end such an order and if an appeal is allowed against the order of the High Court, the question whether or not the detenu should be made to surrender to undergo the remaining period of detention, would depend upon a variety offactors and in particular un the question of lapse of time between the date of detention, the order of the High Court, and the order of this Court, setting aside the order of the High Court. PER MINORITY (G. T. NANAVATI, J. ) If the period of detention is interrupted by order of court and on appeal that erroneous order is set aside the period during which the detenu was released pursuant to the order of court can be excluded while computing the maximum period of detention. Per Dr. Anand, CJ. (for himself and for KT. Thomas, D. P. Wadhwa and S. Rajendra Babu, ff. ) : 1. On a plain reading of section 10 of the Conservation of l :: IANAVA-:-I,J. ] the appeal had become infructuous.

Dealing with that objection this Court held as under : ;'ln our opinion, the submission has no forcc. In Section 10, both in the 11rst and the second part of the scction, it has been expressly mentioned that the detention will be for a period of one year or two years, as the case may be, from the date of dctwtion, and not from the date of the order of detention. If the submission of learned counsd be accepted, two unintended results follow: (1) a person against whom an order of dt:tention is made under Section 3 of the Act can successfully abscond till the expiry of tht: period and altogether avoid detention; and (2) even if the pt:riod of detention is interrupted by the wrong judgment of a High Court, he gets the benefit of thi. : invalid order which he should not. The period of one or two years, as the case may be, as mentioned in section 10 will run from the date of his actual detention, and not from the date of the order of detention.

If he has served a part of the period of detention, he will have to serve out the balance. The prdiminary objection is overruled. " A similar prdiminary objection was r"aised in the case of Mohd. Ismail Jumma'~ case (supra) and following th~ decision in Adum Kasam Bhaya it was overruled. In Poonam Lata a contention was raised that the period of parole cannot be added to the period of detention. The rtasons put forward in support of this contention were : (1) as there is no provision authorising inttrruption of r·Jnning of the period of dckntion, rdcasc on parole docs not bring about any change in the situation; (2) preventive detention is not a sentence by way of punishment and, therefore, the concept of scrving out which pt:rtains to punitive jurisprudence cannot be imported into the realm of prev.

:ntive detention and (3) even t~ough grant of parok to a detenu amounts to a provisional release from confinemt:nt; yet the detenu continues to be undt:r restrains as he would still be subjcct to rcstrictions imposed on free and unfettered movement. Dealing with the first reason this Court observed : "Since in our view release on parole is a matter of judicial determination, apparcntly no provision as containcod in the Code of Criminal Procedure relating to the computation of the period of bail was thought nccessary in the Act. " Dealing with the other two reasons this Court held as under : "The key to the interpretation of Section 10 of the Act is in the words 'may be detained'. The subsequent words 'from the date of detention' which follow the words 'maximum period of one year' merely define the starting point from which the maximum period of detention of one year is to be reckoned in a case not falling under Section 9.

There is no justifiable reason why the word 'detain' should not receive its plain and natural meaning. According to the Shorter Oxford English Dictionary, Vol. 1, p. 531, the word 'detain' means "to keep in confinement or custody". Webster's Comprehensive Dictionary, International Edition at p. 349 gives the meaning as "to hold in custody". The puFpose and object of Section 10 is to prescribe a '. llaximum period for which a person against whom a detention order under the Act is made may be held in actual custody pursuant to the said order. It would not be violated if a person against whom an order of detention is passed is held in actual custody in jail for the period prescribed by the section. The period during which the detenu is on parole cannot be said to be a period during which he has been held in custody pursuant to the order of his detention, for in such a case he was not in actual custody. The order Jf detention prescribes the place where the detenu is to be detained.

Parole brings him out of confinement from that place. Whatever may be the terms and conditions imposed for grant of parole, detention as contemplated by the Act is interrupted when release on parole is obtained. The position would be well met by the appropriate answer to the question "how long has the detenu been in actual custody pursuant to the order? " According to its plain construction, the purpose and object of Section 10 is to pre,cribe not only for the maximum period but also the method by which the period is to be computed. The computation has to commence from the date on which the detenu is taken into actual custody but if it is interrupted by an order of parole, thi. : detention would not continue when parole operates and until the detenu is put back into custody. The running of the period recommences then and a total period of one year has to be counted by putting the different period of actual detention together.

We see no force in Shri Jethmalani's submission that the period during which the detenu was on parole has to be taken into consideration in computing, the maximum period of detention S. F. SHAHv. U. 0. 1. (NANAVATl,J. ) 973 authorised by Section 10 of the Act. " In Pushpa Devi this Court reiterated the same view with some more elaboration. With respect to the first reason this Court observed: "It will not be out of place to point out here that in spite of the Criminal Procedure Code providing for release of the convicted offenders on probation of good conduct, it expressly provides, when it comes to a question of giving set off to a convicted person in the period of sentence, that only the actual pre-trial detention period should count for set off and not the period of bail even if bail had been granted subject to stringent conditions.

In contrast, insofar as preventive detentions under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, are concerned, the Act specifically lays down that a person against whom an order of detention has been passed shall not be released on bail or bail bond or otherwise [vide Section 12(6) of the Act] and that any revocation or modification of the order of detention can be made only by the government in exercise of its powers under . Section 11. Incidentally, it may be pointed out that by reason of sub-section (6) of Section 12 of the Act placing an embargo on the grant of bail to a detenu there was no necessity for the lcgi&latun; to make a provision sirnilai to ~uh-section (4) of Section 189 of the: Code of Criminal Pron:dun. :,1'}73 lcurrtspon \TI J. J 975 "It is obvious that the period of parole cannot be counted towards tht: period of detention. The petitioner should surrender and serve out remaining period of 14. l days' detention.

'' A three Judge Bench thereafter on 10. 7. 1985 inAnuitlal Channumal Jain's case directed that "ln·so·far as these cast:s are concerned, the period during which the petitioners were on parok ,hall be takt:n into account white calculating the total period of detention. The order of detention was passed more than two and half years ago. " Rejecting the contt:ntion that the ratio laid down by the larger Bench in Amritlal Channumal Jain's case has to prevail and must be taken as binding, this Court observed as under : 'We find it difficul. t from the obM::rv 1pable of another construction as well, do not find Shri Jethmaiani's contention on this score as acceptable. "' With n:spect to the orders we may obs.. :rve that no reasons were given in support of the view takt:n in those cases. Therefore, it is not n.

:cessary to go into the controversy whether this Court laid down any law on the point in Harish Makhija's case or that the order passed in the case of Amritlal Channumal Jain's case was binding and ought to have been followed by this ( :ourt while deciding Poonam Lata case. 976 SUPRFM! ' COURT REPORTS [2000) l S. C. R. We may also state that in Adam Kasam Bhaya case the only question that had arisen far consideration was whether the maximum period of detention starts running from the date of the order of detention or the date of actual detention.

How the maximum period is to be counted when it is interrupted hy a l :ourt's invalid order or by an order of parole was not the question raised or decided in that case The observation that "if he has served a part of period of the period of detention he will have to serve out the balance" was made in t':iat context only and it cannot be taken as laying down that if the pn;scribed period of dekntion is thus interrupted then the detenu has to serve out th. : balance period of detention. It was contended by the '. earned Attorney General that Section 10 and particularly the words 'may be dt:taincd' have: to be read in the context of Article 22(7)(b) of the Constitution and if they are so read, also keeping in mind the object and purpose of the Act, then com:ctly interpreted they would mean 'may be actually detained'. He submitted that Article 22(7)(b) is permissive:, it bdng not obligatory on Parliamc. :nt to pn:scribe the maximum period of detention. Mr. Harish N.

Salw, learned Solicitor General appear'. ng for the State of Gujarat, also submitted that the Constitution thus contemplates longer period of detention in the sense that in absc:nce of any limit pre>. cribcd by the Parliament detention can be for a period longer t'lan une made in the running of that period then the oniy dfect it can have is to curtail the period of detention. Taking the contrary view that the detenu must serve out the balance period of detention would render the detention punitive after the paiod of one or two years, as the case may be, counted from the date of detention comes to an end. I, therefore, hold that Harish Makhija, Poonam Lata and Pushpa Devi do not :ay down the correct law on the point.

I further hold that if the period of detention is interrupted either by an order of provisional release made under Section 12 or by an order of the Court, then the maximum period of detention to that extent gets curtailed and neither the period of parole nor the period during which the detenu was released pursuant to the order of the court can be excluded while computing the 980 SUPREME COl:RT REPORTS (200011 S. C. R. A maximum period of detention. In the result, I allow both the Writ Petitions and also dispose of the Special Leave Petition in terms of the view that we have taken in this judgment. B T. N. A. W. P. allowed and SLP disposed of. f