Supreme Court of India
SUNIL FULCHAND SHAHversusUNION OF INDIA AND ORS.
- Citation
- 2000 INSC 74
- Decided
- 16 February 2000
- Bench
- A S ANAND
Holding
Parole does not interrupt the period of preventive detention; the detention period is computed from the date of actual detention and any parole period is to be counted towards the total period unless expressly excluded by the governing rules or order.
Summary
The petitioners, detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), challenged the computation of their preventive detention period and the effect of parole on that period. The Supreme Court examined whether the period of detention runs from the date of actual detention or from the date of the detention order, and whether a period of parole automatically extends the maximum period of detention. It held that the period of detention must be computed from the date of actual detention and that parole does not interrupt the detention period unless the parole order or rules expressly state otherwise; thus parole time counts towards the total detention period. The Court also considered the consequences of a High Court quashing a detention order and the Supreme Court later reversing that decision, concluding that after a long lapse of time (about ten years) the detenu need not be re‑arrested for the balance of the original period. Accordingly, the writ petitions were allowed and the Special Leave Petition was disposed.
Issues considered
- Whether the period of preventive detention under COFEPOSA is a fixed term running from the date specified in the detention order or is extended by any period of parole granted to the detenu.
- Whether, after a High Court quashes a detention order and the Supreme Court reverses that decision, the detenu can be ordered to serve the remaining period of detention, especially when the original period may have expired.
Legislation cited
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA)s. 10, s. 11, s. 12, s. 3, s. 8(b), s. 9
- Constitution of Indias. Article 136, s. Article 142, s. Article 22(4)(a), s. Article 226, s. Article 22(7)(b), s. Article 32
Subjects
preventive detentionparoleCOFEPOSAcomputation of detention periodArticle 22habeas corpushigh court quashSupreme Court reversaltemporary releasebail vs parole
Judgment
SUNIL FULCHAND SHAH A
v.
UNION OF INDIA AND ORS.
FEBRUARY 16, 2000
[DR. A.S. ANAND, CJ., G.T. NANAVATI, K.T. THOMAS, B
D.P. WADHWA ANDS. RAJENDRA BABU, JJ.j
Conservation of Foreign Exchange and Prevention of Smuggling Ac-
tivities Act, 1974 : Sections 10 and 12
c
Preventive detention-Period of detention--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 of detention-That period should be counted towards D
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 E
directing release of detenu-011 appeal Supreme Court reversing e"oneous
decision of High Court and directing detention of detenu-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 F
case of unjustifiable 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 : G
(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? H
945
946 SUPREME COURT REPORTS [2000) 1 S.C.R.
A (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
B 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
c 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
D 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
E 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.)
F 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.
G 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<'oreign
Exchange and Prevention of Smuggling Activities Act, 1974 it is evident
that the period of detention is to be computed from the date of actual
H detention and not from the date of the order of detention.
S.I'. SI-Wf v. t: .O.I. 947
2. Section 10 prescribes not only the maximum period of detention A
but also the method of computation of that period and on a plain reading
of the Section, the period of detention is to be computed from the date of
actual detention and not from the date of the order of detention. The period
of one or two years, as the case may be, as mentioned in Section 10 will
run from the date of the actual detention and not from the date of the
order of detention. Any other interpretation would frustrate the object of
B
an order of detention and a clever person may abscond for the entire
period mentioned in the order of detention and thereby render the order
of detention useless claiming on being apprehended that 'the period has
already expired'. [958-B-C]
c
State of Gujarat v. Adam Kasam Bhaya, [1982] 1 SCR 740 and State
of Gujarat v. lsmail Juma & Ors., [1982] 1 SCR 1014, affirmed.
3. Personal liberty is one of the most cherished freedoms, perhaps
more important than all other freedoms guaranteed under the Constitu- D
tion. It was for this reason that the Founding Fathers enacted the
safeguards in Article 22 in the Constitution so as to limit the power of the
State to detain a person without trial, which may otherwise pass the test
of Article 21, by humanising the harsh authority over individual liberty.
Since, preventive detention is a form of precautionary State action, in·
tended to prevent a person from indulging in a conduct, injurious to the E
society or the security of State or public order, it has been recogni~ed as
•a necessary evil" and is tolerated in a free society in the larger interest of
security of State and maintenance of public order. However, the power
being drastic, the restrictions placed on a person to preventively detain
must, consistently with the effectiveness of detention, be minimal. In a F
democracy governed by the Rule of Law, the drastic power to detain a
person without trial for security of the State and/or maintenance of public
order, must be strictly construed. Supreme Court, as the guardian of the
Constitution, though not the only guardian, has zealously attempted to
preserve and protect the liberty of a citizen. However, where individual
liberty comes into conflict with an interest of the security of the State or G
public order, then the liberty of the individual must give way to the larger
interest of the nation. [958-•'-H; 959-A-B]
4. The Constitution itself permits the Parliament and the State Legis·
lature to make law providing for detention, without trial, upto a period of H
\
948 SUPREME COCRT REPORTS [2000) 1 S.C.R.
A three months without any safeguards but where the law seeks to provide for
detention for a longer period than three months, it must comply with the
constitutional safeguards which are found in sub-clauses (a) and (b) of
Clause (4), though leaving it to the discretion of the detaining authority to
decide what should be the maximum period of detention. Outside limit to
the period of detention has, however, been laid down by the proviso which
B says that nothing in sub-clause (a) of Clause (4) shall authorise the deten-
tion of any person beyond the maximum period prescribed by any law made
by Parliament under Clause (7). The question whether Parliament is itself
bound to prescribe the maximum period of detention under Article 22(7) (b)
of the Constitution in order that the proviso to Article 22(4)(e) might
C operate, is no longer res-integra. [960-C-F]
Fagu Shaw Etc. Etc. v. The State of West Bengal, [1974] 2 SCR 832,
reiterated.
5. Parole does not interrupt the period of detention and, thus, that
D period needs to be counted towards the total period of detention unless
the terms for grant of parole, rules or instructions, prescribe otherwise.
6. Bail and parole have different connotations in law. Bail is well
understood in criminal jurisprudence and Chapter XXXIII of the Code of
E Criminal Procedure contains elaborate provisions relating to grant of bail.
Bail is granted to a per~on who has been arrested in a non-bailable offence
or has been convicted of an offence after trial. The effect of granting bail
is to release the accused from internment though the court would still
retainconstructive control over him through the sureties. In case the
accused is released on his own bond such constructive control could still
F be exercised through the conditions of the bond secured from him. The
literal meaning of the word 'bail' is surety. [960-G-H]
State of Haryana v. Mohinder Singh, JT (2000) 1 SC 629, relied on.
7. 'Parole', however, has a different connotation than bail even
G though the substantial legal effect of both bail and parole may be the
release of a person from detention or custody. 'Parole' is a form of
"temporary release• from custody, which does not suspend the sentence or
the period of detention, but provides conditional release from custody and
changes the mode of undergoing the sentence. In this country, there are
H no statutory provisions dealing with the question of grant of paroie. The
S.E SHAH v. U.O.I. 949
Code of Criminal Procedure does not contain any provision for grant of A
parole. By administrative instructions, however, rules have been framed in
various States, regulating the grant of parole. Thus, the action for grant
of parole is generally speaking an administrative action. [962-G; El
Rainone v. Murphy, 135 N.E. 2 d 567, 571 1 N.Y. 2 d 367 153 ~.Y.S.
end 21, 26; Wooden v. Goheen Ky., 255 S.W. 2 d 1000, 10112 and Jenkins v. B
Madigan, C.A. Ind., 211 F.2 d 904, 906, cited.
Halsbury's Laws of England, 4th Ed., Vol.11, para 166; The Concise
Oxford Dictionary-New Edition; Black's Law Dictionwy-Slxth Edition; P.
Ramanatha Aiyar's, The Law Lexicon with legal Maxims, Latin Tenns and
Wordr & Phrases p.1410 and Wordr and Phrases, (Permanent Edition) :
c
Vol.31, pp. 164, 166, 167, West Publishing Co., referred to.
8. Parole, stricto-senso may be granted by way of a temporary release
as contemplated by Section 12(1) or 12(1A) of COFEPOSA by the Govern·
mentor its functionaries, in accordance with the Parole Rules oradministra· D
tive instructions, framed by the Government which are administrative in
character and shall be subject to the terms of the Rules or the instructions, as
the case may be. For securing release on parole, a detenu has, thenfore, to
approach th:e Government concerned or the jail authorities, who may impose
conditions as envisaged by Section 12(2) etc. and the grant of parole shall be
subject to those terms and conditions. [963-F] E
9. Section 12(6) of the COFEPOSA starts with a non-obstante clause
and mandates that no person against whom a detention order made under
COFEPOSA is in force shall be released 'whether on bail or bail bond or
otherwise'. The expression 'or otherwise' would include release of the p
detenu even on parole through judicial intervention. The prohibition is
significant and has a purpose to serve. Since the object of preventive
detention is to keep a person out of mischief in the interest of the security
of the State or public order, judicial intervention to release the detenu
during the period an order of detention is in force has to be minimal.
Vndi:r Section 12(1) or 12(1A), it is for the State to see whether the detenu G
should be released temporarily or not, keeping in view the larger interest
of the State and the requirements of detention of an individual. Terms and
conditions which may be imposed while granting order of temporary
relt:ase are also indicated in the other granting clauses of Section 12 for
the guidance of the State. (963-C-D] H
950 SUPRf.ME COURT REPORTS [2000] 1 S.C.R.
A 10. The Courts cannot, generally speaking, e.'<ercise the power to
grant temporary release to detenus, on parole, in cases covered by
COFEPOSA during the period an order of detention is in force because of
the express prohibition contained in Clause (6) of Section 12. However, the
bar of judicial intervention to direct temporary release of a detenu would
not affect the jurisdiction of the High Courts under Article 226 of the
B Constitution or uf this Court under Articles 32, 136 or 142 of the Constitu·
tion to direct the temporary release of the detenu, where request of the
detenu to be released on parole for a specified reason and/or for a specified
period, has been, in the opinion of the Court, unjustifiably refused or where
in the interest of justice such an order of temporary release is required to
C be made. That jurisdiction, however, has to be sparingly exercised by the
Court and even when it is exercised, it is appropriate that the court leaves
it to the administrative or jail authorities to prescribe the conditions and
terms on which parole is to be availed of by the detenu. (963-H; 964-A-C]
11. Release on parole is only a temporary arrangement by which a
D detenu is released for a temporary fixed period to meet certain situations.
12. An ordt:r made under Section 12 of temporary release of a detenu
on parole does not bring the detention to an end for any period • it does
not interrupt the period of detention • it only changes the mode of deten·
tion by restraining the movement of the detenu in accordance with the
E conditions prescribed in the order of parole. The detenu is not a free man
while out on parole. Even while on parole he continues to serve the
sentence or undergo the period of detention in a manner different than
from being in custody. He b not a free person. Parole does aot !teep the
period of detention in a ~tate of suspiended animation. The period of
F detention keeps ticltlng during this period of temporary release of a
detenu also because a parolee remains in legal custody of the State and
under the control of its agents, subject at any time, for breach of co11di·
tion, to be returned to custody. The period of detention would not stand
automatically extended by any period of parole granted to the detenu
G unless the order of parole or rules or instructions specifically indicates
as a term and condition of parole, to the contrary. The period during
which the detenu is on parole, therefore, requires to be counted towards
the total period of detention. [964-F·G; 965-C]
13. The quashing of an order of detention by the High Court brings
H to an end such an order and if an appeal is allowed against the order of
S.F. SHAH v. U.O.I. 951
the High Court, the question whether or not the detenu should be made to A
surrender to undergo the remaining period of detention, would depend
up@n a variety of factors and in particular on 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. [967-E]
A detenu need not be sent back to undergo the remaining period of B
detention, after a long lapse of time, when even the maximum prescribed
period intended in the order of detention has expired, unless there still
exists a proximate temporal nexus between the period of detention
prescribed when the detenu was required to be detained and the date when
the detenu is required to be detained pursuant to the appellate order and C
• the State is able to satisfy the court about the desirability of 'further' or
'
'continued' detention. (967-G]
Where however long time has not lapsed or the period of detention
initially fixed in the order of detention has also not expired, the detenu
may be sent back to undergo the balance period of detention. It is open to D
the Appellate Court, considering the facts and circumstances of each case,
to decide whether the period during which the detenu was free on the basis
ofan erroneous order should be excluded while computing the total period
of detention as indicated in the order of detention, though normally the
period during which the detenu was free on the basis of such an erroneous E
order may not be given as 'set oil' against the total period of detention.
The actual period ol' incarceration cannot, however, be permitted to exceed
the maximum period of detention, as fixed in the order, as per the prescrip-
tion of the statute. (967-H; 968-A-B]
14. In the instant case long period has lapsed since the detenus in F
each of these cases were released and no material has been placed before
this Court by the detaining authority to warrant further detention of the
detenu at this distant point of time. Therefore, the detenus need not be
directed to undergo 'the remaining period of detention' because the nexus
between detention and object of detention would appear to have been G
snapped during this period of about ten years, during which period
detenus were free.
Smt. Poonam Lata v. M.L. Wadhwan & Ors., AIR (1987) SC 1383;
Pushpadevi M. Jatia v. M.L. Wadltawan, AIR (1987) SC 1748 and Harish
Makhija v. State of U.P., [1987] 3 SCC 432, overruled. H
•
952 SUPREME COURT REPORTS [2000] 1 S.C.R.
A PER NANAVATI, J. (Partly dissenting)
1. It is true that Article 22(7)(b) has been held permissive and,
therefore, there can be a preventive detentfon legislation which does not
provide for the maximum period of detention and a person can be detained
B thereunder for a period longer than one or two years. That, however,
cannot justify the view that the provision prescribing maximum period of
detention should be construed liberally. When the Parliament has chosen
to rix the maximum period, the question as to how the said period is to be
computed will have to be decided by considering the object of the legisla-
tion nnd the relevunt provision, the words used in that provision and
C without being influenced by the nat1re of power conferred by Article
22(7)(b). (976-F]
2. The distinction between preventive detention and punitive deten·
tion has now been well recognised. Preventive detention is qualitatively
D different from punitive detention/sentence. A person is preventively
detained without a trial but punitive detention is after a re1.'lllar trial and
when he is found guilty of having committed an offence. The basis of
preventive detention is suspicion and its justification is necessity. The basis
of sentence is the verdict of the Court after a regular trial. When a person
is preventively detained his detention can be justified only so long as it is
E found necessary when a person is sentenced to suffer imprisonment it is
intended that the person so sentenced shall remain in prison for the period
stated in the order imposing sentence. The term specified in the order of
sentence is intended to be actual period of imprisonment. On the other
hand, preventive detention being an action ofimmediate necessity has to be
F immediate and continuous if it is to be effective and the purpose of deten·
tion is to be achieved. The justification for preventive detention being
necessity, a person can be detained only so long as it is found necessary to
detain him. If his detention is found unnecessary, even during the maxi·
mum period permissible under the law then he has to be released from
detention forthwith. It is really in this context that S.10 and particularly the
G words 'may be detained' shall have to be interpreted. (977-A-E]
3. COFEPOSA like all other preventive detention laws has been
regarded as a Draconian Law as it takes away the freedom and liberty of
the citizen without a trial and on mere suspicion. It is tolerated in a
H democracy governed by the rule of law only as a necessary evil. Though the
\'
•
,\
S.F. SHAH v. t;D.I. 953
object of such legislation is to protect the nation and the society against A
anti national and anti social activities, the nature of action permitted is
preventive and not punitive. [976·G·H]
4. The object of enacting the COFEPOSA Act is to provide for
preventive detention in certain cases for the purposes of conservation and
B
augmentation of foreign exchange and prevention of smuggling activities
and for matters connected therewith. The power to detain is to be exercised
on being satisfied with respect to any person that with a view to preventing
him from including in any prejudicial activity specified in S.3, it is neces·
sary to make an order for his detention. The satisfaction of the detaining
authority must be genuine. Once the detaining authority is satisfied C
regarding the necessity to make an order of detention.a quick action is
contemplated, and if detention is to be effective then it has to be con-
tinuous. [977-1<'-H; 978-BJ
S. Provisions contained in Sections 8(6), 9 and 12(6) of COFEPOSA D
clearly indicate the intention of the legislature that once detention starts
it must run continuously and that the power to release on bail or otherwise
has been taken away as it does not want the period of detention to be
curtailed in any manner. Therefore, there is no justification for taking the
view that the words 'may be detained' in S.10 contemplate actual detention E
for the maximum period. If the word 'detain' is interpreted to mean
actually detained for the maximum period, then it will partake the char-
acter of punitive detention and not preventive detention. [978-F]
6. The reason given by this Court in Poonam Lata"'* that the period
during which the detenu is on parole cannot be said to be a period during F
which he has been held in custody pursuant to the order of his detention,
because Ile w.is not in actual custody then, does not appear to be sound.
A tempor,uy release under S.12, of the person detained does not change
his status as his freedom and liberty are not fully restored. Therefore, the
period of temporary release on parole cannot be excluded from the G
maximum period of detention. Though the purpose and object of S.10 is
to prescribe not only the maximum period of detention but also for the
method of computation of the period, the only inference that can be drawn
therefrom is that the period of detention has to be computed from the
date of actual detention and not from the date of the order of detention. H
954 SUPREME COURT REPORTS (2000] 1 S.C.R.
A Since S.10 does not prescribe any other method, it is not proper to drnw
a further inference that the maximum period or detention is to be com-
puted by excluding the period during which the detenu was released on
parole. (978-H; 979-A·CJ
B 7. The Act contemplates continuous period of detention. If in spite
or that any interruption is made in the running or that period then the
only effect it can have is to curtail the period of detention. Taldn3 the
contrary view that the detenu must serve out the balance period or deten·
tion would render the detention punitive after the period of one or two
years, as the case may be, counted from the date of detention comes to an
C end. (979-F]
8. In Adam Kasam Bhaya's¢ case the only question that had arisen
for consideration was whether the maximum period of detention starts
running from the date of the order of detention or the date of actual
D detention. How the maximum period is to be counted when it is interrupted
by a Courts' 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 or the period of detention he will have to serve out the balance" was
made in that context only and it cannot be taken as laying down that if the
E prescribed period of detention is thus interrupted then the detenu has to
serve out the balance period of detention. (976-A·B]
>::<State of Gujarat v.Adam Kasam Bhaya, [1981] 4 SCC 216, explained
and distinguished.
F 9. If the period of detention is interrupted either by an order of
provisional release made under S.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
G maximum period of detention. [979-H]
Amritlal Cha1111umal Jain Etc. v. State of Gujarat & Ors., WP Nos.
1342-43, 1345-48, 1567/82 and 162/83 decided by Supreme Court on
10.7.1985 and State of Gujarat v. Mohd. Ismail Jumma, (1981) 4 609,
H referred to.
S. F. SHAH v. U.0.l. [AS. ANA..'<D, CJ.j 955
**Poonam Lata v. M.L. Wadhwan, (1987] 3 SCC 347; Pushpadevi M. A
Jatia v. M.L. Wadhawan, (1987]3 SCC 367 and Ha1ish .l\1akhija v. State of
U.P., (1987] 3 SCC 432, overruled.
CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.) No.
248 of 1988 Etc.
B
(Under Article 32 of the Constitution of India.)
Soli J. Sorabjee, Attorney General, H.N. Salve, Solicitor General,
Kuldeep Singh, Additional Solicitor Gem:ral, U.R. Lalit, T.C. Mehta, M.G.
Karmali, Vineet Kumar, J,B. Patel, Mrs. H. Wahi, M.N. Shroff, A. Subba C
Rao, P. Parmeshwaran, C.V.S. Rao, K.M.M. Khan, Wasim A. Quadri, B.K.
Prasad, Ms. Sunita Hazarika, (Ms. S. Bagga, K.R. Nagaraja) (NP),
Tripurari Ray, Herjinder Singh, Ms. Priya Saxena, Pramit Saxena, S.V.
Deshpande, Ms. Kamini Jaiswal, Adhyaru Yashank P., Anip Sachthey, Ms.
Anu Sawhney, R.P. Wadhwani, (S.V. Deshpande) (NP), Rajiv Dutta, Ms. D
Meenakshi Kulshrestha and Kapil Sharma for the appearing parties.
The Judgments of the Court were delivered by
DR. A.S. ANA.l'\/D, CJ. I have had the advantage of going through the
judgment of our learned brother Nanavati, J. and I agree that these E
petitions should be allowed Long period has lapsed since the detenus in
each of these cases were reicased and no material has been placed before
us by the detaining authority to warrant further dett:ntion of the detenus
at this distant point of time. The dctt:nus, in my opinion need not be
directed to undergo 'the remaining period of detention'' because the nexus F
between detention and object of detention would appear to have been
snapped during this period of about ten years, during which period dctcnus
were free. ln fairness to the learned Attorney General it must be stated
that he fairly conceded this position. I find myself unablt: to fully subscribe
to the view of brother Nanavati, J. relating to the treatment of the period
during which a detenu is free as a result of an erroneous order of the High G
Court which is set aside on appeal. r would also like to giw my own reasons
in support of the answer to the other questions involved in these cases.
It would be appropriate to first refer to the order of reFert:nce made
by a 2-Judge Bench on 1st of May, 1989. That ordt:r reads thus : H
956 SUPREME COURT REPORTS [2000] 1 S.C.R.
A 'This writ petition under Article 32 of the Constitution and the
Special Leave Petition under Article 136 of the Constitution arises
out of proceedings for preventive detention taken under the Con-
servation of Foreign Exchange and Prevention of Smuggling Ac-
tivities Act, 1974. One of the substantial points which arises in
B these cases is whether the period of detention is a frxed period
running from the date specified in the detention order and ending
with the expiry of that period or the period is automatically
extended by any period or paro!t: granted to the detenu. In case
where the High Court allows a habeas corpus petition and directs
the detenu to be released and in consequence the detenu is set
c free, and thereafter an appeal filed in this Court results in the
setting aside of the order of the High Court, is it open to this Court
to direct the arrest and detention of the detenu if meanwhile the
original period of detention intended in the detention order has
expired? Four deci~ions of this Court have been placed before us
D in support of the contention that the period of dttention intended
by the detention order is not a fixi;d period but can be correspond-
ingly extt:nded if :he detenu absconds before he can be ap-
prehended and detained or the period of detention is interrupted
by an erroneous judgment of a High Court and the detenu is set
E free. Those cases are State of Gujarat v.Adam Kasam Bhaya, (1982)
1 S.C.R. 740, State of Gujarat v. lsmail Juma & Ors., (1982] 1 S.C.R.
1014, Smt. Poonam Lata v. M.L. Wadhawan and Others, A.LR.
(1987) SC 1383, and Pushpadevi M. Jatia v. M. L. Wadhawan, A.I.R.
(1987) SC 1748. We find some difficulty in accepting the view taken
F by the learned Judges of this Court who decided those cases. It
seems to us prim a f acie that what is important is that we are
concerned with cases of preventive detention, cases where the
detaining authority is required to apply its mind and decide
whether, and if so for how long, a person should be detained. It
G is preventive detention and not punitive detention. Prevention
detention invariably. runs from the date specified in the detention
order. In the cast of punitive detention, no date is ordinarily
specified from which the detention will commence, and all that is
mentioned is the period of detention. In case of preventive deten-
H
}
S.F. SHAH v. U.0.1. [AS. ANk.'fD, CJ.] 957
tion the detaining authority applies its subjective judgment to the A
material before it and determines what should be the period for
which the detenu should be detained, that is to say, the period
during which he should be denied his liberty in order to prevent
him from engaging in mischief. It seems to us prim a f acie that one
possible view can be that if parole is granted that period of parole B
should be counted within the total period of detention and not
outside it. As regards the problem raised by the release of the
detenu pursuant to an erroneous decision of the High Court, and
the subsequent reversal of that decision by this Court, the remedy
probably lies in the enactment of legislation analogous to s.5(1) C
and s.15(4) of the Administration of Justice Act, 1960 in the United
Kingdom. The question is an important one affecting as it does on
the one hand the need for effective measures of preventive deten-
tion and on the other the liberty of the subject and his right to
freedom from detention beyond the period intended by the statute. D
As the matter is of great public importance, and most cases of
preventive detention are bound to be affected, we refer these cases
to a Bench of five Hon'ble Judges for consideration of the law on
the point."
From the above onler of reference, essentially the substantial ques- F
tions which arise for our consideration are :
Firstly, 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. Secondly, in a case where the High Court F
allows a habeas corpus petition and directs a detenu to be released and
in consequence the dctenu is set free and thereafter on appeal the er-
roneous decision of the High Court is reversed, is it open to this Court to
direct the arrest and detention of the detenu, to undergo detention for the
period which fell short of the original period of detention intended in the G
detention order on account of the erroneous High Court order.
Brother Nanavati, J. has dealt with various judgments referred to in
the order of reference and analysed them. I agree that the judgments in
Harish Makhija v. State of U.P., (1987] 3 SCC 432, Poonam Lata (supra)
and Pushpadevi (supra) do not lay down the correct law because the H
958 SUPRfME COURT REPORTS (2000] 1 S.C.R.
A propositions of law laid down in those judgments, which has been extracted
by brother Nanavati, J. have been very widely stated. I do not intend to
deal with those judgments and would like to address myself to the questions
as noticed above.
B Section 10 of COFEPOSA prescribes not only the maximum period
of detention hut also the method of computation of that period and on a
plain reading of the section, the period of detention is to be computed from
the date of actual detention and not from the date of the order of detention.
Tht: period of one or two years, as the case may be, as mentioned in Section
10 will run from the date or the actual dc;tt:ntion and not from the date of
C the order of ddention. Any other int..:rpretation would frustrate the object
of an order of ddention and a clever person may abscond for the entire
period mentioned in the order of detention and thereby render the order
of detention usdess claiming on be;.ng apprehended that the period has
already expired'. The view expressed inAdam Kasam Bhaya's (supra) case
D and Ismail Juma's (supra) case, in this behalf lays down the correct law
and I adopt that reasoning and hold that the period of detention specified
in the order of detention would commence not from the date of the order
but from the dak of actual detention. That period is the maximum period
of detention. Would that period get automatically extended by any period
E of parole granted to the detenu is the next question? I shall deal with the
other observation in Adam Kasam Bhaya's (supra) case viz. ''if he has
served a part of the perivd of dckntiun, he will have to strve out the
balance" separatdy, in tht: later part of this order.
F Personal liberty is one of the most cherished freedoms, perhaps more
important than the other freedoms guaranteed under the Constitution. It
was for this reason that the Founding Fathers enactt:d the safeguards in
Article 22 in thi; Constitution so as to limit the power of the State to detain
a person without trial, which may otherwise pass the test of Article 21, by
humanising the harsh authority over individual liberty. Since, preventive
G detention is a form of precautionary state action, intended to prevent a
person from indulging in a conduct injurious to the society or the security
of State or public order, it has been recognised as "a necessary evil" and is
tolerated in a free society in the larger interest of security of State and
maintenanct: ol public order. However, the power being drastic, the restric-
H tions placed on a person to preventively detain must, consistently with the
_j
S.F. SHAH v. lJ.O.I. [AS. ANAND, CJ.] 959
effectiveness of detention, be minimal. In a democracy governed by the A
Rule of Law, the drastic power to detain a person without trial for security
of the State and/or maintenance of public order, must be strictly construed.
This Court, as the guardian of the Constitution, though not the only
guardian, has zealously attempted to preserve and protect the liberty of a
citizen. However, where individual liberty comes into conflict with an
interest of the security of the State or public order, then the liberty of the
B
individual must give way to the larger interest of the nation.
It would bt:: relevant at this stage to notice the provisions of Article
22(4)(a) and (7) of the Constitution.
Article 22(4)(a) of the Constitution provides as follows :
c
"22 (4)( a) - an Advisory Board consisting of persons who are, or
have been, or are qualified to be appointed as, judges of a High
Court has reported before the expiration of the said period of three
months that there is in its opinion sufficient cause for such deten- D
tion:
Provided that nothing in this sub-clause shall authorise the
detention of any person beyond the maximum period prescribed
by any law made by Parliament under sub-clause (b) of clause (7)."
E
Clause (7) of Article 22 says :
"Clause (7) - Parliament may by law prescribe -
(a) the circumstances under which, and the class or classes of
cases in which, a person may be detained for a period longer F
than three months under any law providing for preventive
detention. without obtaining the opinion of an Advisory Board
in accordance with the provisions of sub-clause (a) of clause
(4);
(b) the maximum period for which any person may in any class
G
or classes of cases be detained under any law providing for
preventive detention; and
(c) the procedure to be followed by an Advisory Board in an
inquiry under sub-clause (a) of clause (4)." H·
960 SUPREME COURT REPORTS [2COOl I S.C.R.
A A combined reading of Clauses (4) and (7) makes it clear that if a
law made by Pdr!iament or the Statt: Legislature authorises the detention
of a person for a period not exceeding three months, it does not have to
satisfy any other constitutional requirement except that it must be within
the !t:gislative competence of the Parliament or the State Legislature, as
B the case may he. (Article 246, Entry 9, List l and Entry 3, List-Ill of
Seventh Schedule). The Constitution itself permits the parliament and the
State Legislature to make :aw providing for detention, without trial upto
a period of thr..:e months without any safeguards but where the law seeks
to provide for dt:kntion for a longer pt:riod than three months, it must
comply with th..: constitutional safoguards which are found in sub-clauses
C (a) and (b) of ( '.ause (4), though leaving it to the discretion of the detaining
authority to dtcide what should be the maximum period of detention.
Outside limit to the period of detention has, however, been laid down by
the proviso which says that nothing in sub-clause (a) of Clause (4) shall
authorise the detention of any per,on beyond the maximum period
D prescribed by any law made by Parliament under Cause (7). The question
whether Parliamt!nt is itself bound to prt:scribe the maximum period of
detention undt:r Article 22(7)(b) of the Constitution in order that the
proviso to Article 22(4)(e) might operatt!, is no longer res-integra. The issue
was considered by a Cor.stitution Bench of this Court in Fagu Shaw, Etc.
Etc. v. The State of Wes/ Bengal, [1974) 2 S.C.R. 832, and authoritatively
E answered. Since, I respectfully agree with the answer, I need not detain
myself to deal with that issue any further.
To answer tht: question whether the pt:riod of detention would stand
automatically extended by any period of parok granted to a dt:tenu, we
F need to examine the concept and affoct of parole more particularly in a
preventive: detrntion case.
Bail and parole havt: diffen::nt connotations in law. Bail is well
understood in criminal jurisprudence and Chapter XXXIII of the Code of
Criminal Procedure contains elaborate provisions relating to grant of bail.
G Bail is grantt:d to a person who has bt:t:n arrested in a non-bailable offence
or has been convicted of an offonce after trial. The effect of granting bail
is to release the accust:d from internment though tht: court would still
retain constructive control over him through the sureties. In case the
accused is relt:ased on his own bond rnch constructive control could still
H be exercised through the conditions of the bond secured from him. The
S.F. SHAH v. U.O.I. [AS. A.'lAND, CJ.] 961
litt:ral meaning of the word 'Bail' is surety. In Halsbury's Law of England A
4th Ed., vol 11, para 166, the following observation succinctly brings out
the effect of bail:
"The cffoct of granting bail is not to set the defendant (accused)
at liberty but to release him from the custody of law and to entrust
him to the custody of his sureties who arc bound to produce him B
to appear at his trial at a specified time and place. The sureties
may seize their principal at any time and may discharge themselves
by handing him over to the custody of law and he will then be
imprisoned."
'Parole', however, has a different connotation than bail even though C
the substantial legal effect of both bail and parole may be the release of a
person from detention or custody. The dictionary meaning of 'Parole' is :
THE CONCISE OXFORD DICTIONARY - NEW EDITION
'The release of a prisoner temporarily for a special purpose or D
completely before the ~xpiry of a sentence, on the promise of good
behaviour; such a promise, a word of honour."
BLACK'S LAW DICTIONARY - SIXTH EDITION
''Rdea'e from Jail, prison or other confinement after actually E
serving part of sentence; conditional release from imprisonment
which entitles parolee to serve remainder of his term oubide
confines of an institution, if he satisfactorily complies with all terms
and conditions provided in parole order.''
According to The Law Lexicon P. Ramanatha Aiyar's The Law Lexicon with F
Legal Maxims, Latin Tenns and Words & Phrases; p. 1410., 'parole' has been
defined as:
"A parole is a form of conditional pardon, by which the convict
is rdeased before the expiration of his term, to remain subject, G
during the remainder thereof, to supervision by the public authority
and to return to imprisonment on violation of the condition of the
parole.'
According to Words and Phrases (Pem1anent Edition) vol. 31; pp. 164,
166, 167; West Publishing Co. : H
962 SUPREME COURT REPORTS [2GC0] 1S.C.R.
A ''Parole' ameliorates punishment by permitting convict to serve
sentence outside of prison walls, but parole dots not interrupt
sentence. People ex rel. Rainone v. Murphy, 135 N.E. 2d 567, 571,
1 N.Y. 2d 367, 153 N.Y.S. 2d 21, 26.
'Parole' docs not vacate sentence imposed, but is merely a
B conditional suspension of sentence. Wooden v. Goheen, Ky., 255
S.W. 2d 1000, lCOZ"
"A 'parole' is not a 'suspension of sentence', but is a substitu-
tion, during continuance of parole, of lower grade of punishment
c by confinement in ltgal custody and under control of warden within
specified prison bounds outside the prison, for confinement within
the prison adjudged by the court. Jenkins v. Madigan, C.A. Ind.,
211 F. 2d 904, 906.
"A 'parole' does not suspend or curtail the st:ntt:nce originally
D imposed by the court as contrasted with a 'commutation of
sentenct:' which actually modifies it"
In this country, there are no statutory provisions dealing with the
question of grant of parole. The Code of Criminal Procedure does not
E contain any provision for grant of parole. By administrative instructions,
however, rules have been framed in various States, regulating the grant of
parole. Thus, the action for grant of parole is generally speaking an
administrative action. The distinction betvn:en grant of bail and parole has
bt:en clearly brought out in the judgment of this Court in State of Haryana
v. Mohinder Singh JT (2000) 1 SC 629, to which om: of us (Wadhwa, J.)
F was a party. That distinction is explicit and I respectfully agree with that
distim;tion.
Thus, it is seen that 'parole' is a form of "temporary release" from
custody, which does not suspend the sentence or the period of detention,
but provides conditional rekase from custody and changes the mode of
G undergoing the sentence. COFEPOSA does not contain any provision
authorising the grant of parole by judicial Intervention. As a matter of fact,
Section 12 of COFEPOSA, which enables the administration to grant
temporwy release of a detained person expressly lays down that the Govern-
ment may direct the release of a detenu for any specified period either
H without conditions or upon such conditions as may be specified in the order
S.F. SHAH v. U.O.I. [AS. ANAND, CJ.] 963
granting parole, which the parolee accepts. Sub-section (6) of Section 12 A
lays down:
"Section 12(6) - Notwithstanding anything contained in any other
law and save as otherwise provided in this section, no person
against whom a detention order made under this Act is in force
shall be released whether on bail or bail bond or otherwise." B
Section 12(6) starts with a non-obstante clause and mandates that no
person against whom a detention order made under COFEPOSA is in
forci: shall be released 'whether on bail or bail bond or otherwise'. The
prohibition is significant and has a purpose to serve. Since, the object of C
preventive detention is to keep a person out of mischief in the interest of
the security of the State or public order, judicial intervention to release the
dt:tcnu during the period an order of detention is in force has to be
minimal. Under Section 12(1) or 12(1A), it is for the State to see whether
thi: detenu should be released temporarily or not keeping in view the larger D
interest of the State and the requirements of detention of an individual.
Terms and conditions which may be imposed while granting order of
temporary rekase are also indicated in the other clauses of Section 12 for
the guidance of the State. Clause (6) in terms prohibits the relt:ase of a
detcnu, during the period an order of detention is in force, '011 bail or bail
bond or otheIWise'. The expression 'or otherwise' would include release of E
the dt:tt:nu even on parole through judicial intervention.
Thus, parole, xtlicto-senso may be granted by way of a temporary
rekase as contemplated by Section 12(1) or 12(1A) of COFEPOSA by the
Government or its functionaries, in accordance with the Parole Rules or F
administrative instructions, framed by the Government which are ad-
ministrative in character and shall be subject to the terms of the Rules or
the instructions, as the case may be. For securing release on parole, a
detenu has, therefore, to approach the Government concerned or the jail
authorities, who may impose conditions as envisaged by Section 12(2) etc.
and the grant of parole shall be subject to those terms and conditions. The G
Courts cannot, generally speaking, exercise the power to grant temporary
release to detenus, on parole, in cases covered by COFEPOSA during the
period an order of detention is in force because of the express prohibition
contained in clause (6) of Section 12. Temporary release of a detenu can
only be ordered by the Government or an Officer subordinate to the H
964 SUPREME COURT REPORTS [2000] 1 S.C.R.
A Government whether Central or State. I must, however, add that the bar
of judicial intervention to direct temporary release of a detenu would not
effect the jurisdiction of the High Courts under Article 226 of the Con-
stitution or of this Court under A'Iticles 32, 136 or 142 of the Constitution
to direct the temporary release of the d<:tenu, where request of the detenu
B to be released on parole for a specified reason and/or for a specified
period, has been, in the opinion of the Court, unjustifiably refused or where
in the interest of ~ustice suc:h an order of temporary release is required to
be made. That jurisdiction, however, has to be sparingly exercised by the
Court and even when it is exercised, it is appropriate that the court leaves
it to the administrative or Jail authorities to prescribe the conditions and
C terms on which parole is to be availed of by the detenu.
Since, relea~e on parole is only a ttmporary arrangement by which a
detenu is released for a temporary fixed period to meet certain situations,
it does not interrupt the period of dett:ntion and, thus, needs to be counted
D towards the total period of detention unless the rules, instructions or terms
for grant of parole, prescribe otherwise . The period during which parole
is availed of is not aimed to extend the outer limit of the maximum period
of detention indicated in the order of detention. The period during which
a detenu has been out of custody on temporary release on parole, unless
otherwise prescribed by the order granting parole, or by rules or instruc-
E tions, has to be i11c/udcd as a part of the total period of detention because
of the very nature of parole. An order made undi::r Section 12 of ti::mporary
release of a deteo.u on parole doi::s not bring the detention to an end for
any period - it does not interrupt the period of detention - it only changes
the mode of detention by restraining the movement of the detenu in
p accordance with the conditions prescribed in tht: order of parole. The
detenu is not a free man while out on parole. Ewn while on parole he
continues to serve tht: sentence or undergo the period of detention in a
manner different than from being in custody. He is not a free person.
Parole does not keep the period of detention in a state of suspended
animation. The period of detention keeps ticking during this period of
G temporary release of a detenu also b1;;cause a parolee remains in legal
custody of the State and under the control of its agents, subject at any time,
for breach of condition, to be returned to custody. Thus, cases which are
covered by Section 12 of COFEPOSA, the period of temporary release
would be governed by the conditions of release whether contained in the
H order or the rules or instructions and where the conditions do not prescribe
S.F. SHAH v. V.0.1. [AS. ANAND, CJ.j 965
it as a condition that the period during which the detenu is out of custody, A
should be excluded from the total period of detention, it should bt: counted
towards the total period of detention for the simple reason that during the
period of temporary release the detenu is deemed to be in constructive
\ custody. In cases falling outside Section 12, if the interruption of detention
is by means not authorised by law, then the period during which the detenu
has been at liberty, cannot be counted towards period of detention whilt:
B
computing the total period of detention and that period has to be excluded
while computing the period of detention. The answer to the question,
therefore, is that the period of detention would not stand automatically
extt:nded by any period of parole granted to the detenu unless the order
of parole or rules or instructions specifically indicates as a term and c
condition of parolt:, to the contrary. The period during which the detenu
is on parole, therefore, requires to be counted towards the total period of
detention.
Coming now to the next question and the other observations made D
in Adam Kasam Bhaya's (supra) case, viz., "if he has served a part of the
period of detention, he will have to serve out the balance".
The quashing of an order of detention by the High Court brings · J
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 E
, ..
surrender to undergo the remaining period of detention, would depend
upon a variety of factors and in particular on 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. A detenu need not
be sent back to undergo the remaining period of detention after a long F
lapse of time, when even the maximum prescribed period intended in the
order of detention has expired, unless there still exists a proximate tem-
poral nexus between the period of detention prescribed when the detenu
was required to be detained and the date when the detenu is required to
be detained pursuant to the appellate order and the State is able to satisfy
the court about the desirability of 'further' or 'continued' detention. Where, G
however, long time has not lapsed or the period of detention initially fixed
in the order of detention has also not expired, the detenu may be sent back
to undergo the balance period of detention. It is open to the Appellate
Court considering the facts and circumstances of each case, to decide
whether the period during which the detenu was free on thi: basis of an H
966 SUPREME COURT REPORTS (2000] 1 S.C.R.
A erroneous order should be excluded while computing the total period of
detention as indicated in the order of detention, though normally the
period during which the detenu was free on the basis of such an erroneous
order may not be given as a 'set off against the total period of detention.
The actual period of incarceration cannot, however, be permitted to exceed
B the maximum period of detention, as fixed in the order, as per the prescrip-
tion of the statute.
The summary of my c.onclusions by way of answer to the questions
posed in the earlier portion of this order are :
c 1. Personal liberty is one of the most cherished freedoms, perhaps
more important than the other freedoms guaranteed under the Constitu-
tion. It was for this reason that the Founding Fathers enacted the
safeguards in Article 22 in the Constitution so as to limit the power of the
State to detain a person without trial, which may otherwise pass the test of
D Article 21, by humanising the harsh authority over individual liberty. In a
democracy governed by the Rule of Law, the drastic power to detain a
person without trial for security of the State and/or maintenance of public
order, must be strictly construed. However, where individual liberty comes
irto conflict with an interest of the security of the State or public order,
E then the liberty of the individual must giw way to the larger interest of the
nation;
2. That Section 10 of COFEPOSA prescribes not only the maximum
period of detention but also the method of computation of that period and
on a plain reading of the section, the period of detention is to be computed
F from the date of actual dete11tio11 and not from the date of the order of
detention;
3. That parole, suicto-senso may be granted by way of a temporary ·
release as contemplated by Section L2(1) or 12(1A) of COFEPOSA by the
G Government or its functionaries, in accordance with the Parole Rules or
.administrative instructions, framed by the Government which are ad-
ministrative in character. For securing n:lease on parole, a detenu has,
therefore, to approach the Government concerned or the jail authorities,
who may impose conditions as envisaged by Section 12(2) etc. and the grant
H of parole shall subject to those terms and conditions;
S.F. SHAH v. U.O.I. '.AS. ANAND, CJ.] 967
4. That the Courts cannot, generally speaking, exercise the power to A
grant temporary release to detenus, on parole, in cases covered by
COFEPOSA during the period an order of detention is in force because
of the express prohibition contained in Clause (6) of Section 12. The bar
of judicial intervention to direct temporary, release of a detenu would not,
however effect the jurisdiction of the High Courts under Article 226 of the
Constitution or of this Court under Articles 32, 136, 142 of the Constitution
B
to direct the temporary release of the detenu, where request of the detenu
to be released on parole for a specified reason and/or for a specified
period, has been, in the opinion of the Court, unjustifiably refused or where
in the interest of justice such an order of temporary release is required to
be made. That jurisdiction, however, has to be sparingly exercised by the c
Court and even when it is exercised it is appropriate that the court leaves
it to the administrative or jail authorities to prescribe the conditions and
terms on which par0le is to be availed of by the detenu;
5. That parole does not interrupt the period of detention and, thus,
that period needs to be counted towards the total period of detention D
unless the terms for grant of parole, rules or instructions, prescribe
otherwise;
6. 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 E
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 of factors and in particular on 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.
F
A detenu need not be sent back to undergo the remaining period of
detention, after a long lapse of time, when even the maximum prescribed
period intended in the order of detention has expired, unless there still
exists a proximate temporal nexus between the period of detention indi-
cated in the order by which the detenu was required to be detained and G
the date when the detenu is required to be detained pursuant to the
appellate order and the State is able to satisfy the court about the
desirability of 'further' or 'continued' detention;
7. That when:, however, long time has not lapsed or the period of
detention initially fixed in the order of detention has not expired, the H
968 SUPREME COURT REPORTS [2000] 1 S.C.R.
A detenu may be sent back to undergo the balance period of detention. It is
open to the Appellate Court, considering the facts and circumstances of
each case, to decide whether the period during which the detenu was free
on the basis of an erroneous order should be excluded while computing
the total period of detention a~ indicated in the order of detention though
B normally the period during which the detcnu was free on the basis of such
an erroneous order may not be given as a 'st:t off against the total period
of detention. The actual period of incarcL:ration cannot, howtver, be per-
mitted to exceed tht maximum period of dttention, as fixed in the order,
as per the prescription of the statute.
C The above is not a summary of the judgment but shall have to be
read along with the judgment.
ConseqUt:ntl)', the writ petitions are allowed and the special leave
petition is disposed of in term~ of the above order.
D G.T. NANAVATI, J. A short but a qUt::stion of law of general impor-
tance that arises for consideration in this case is whether the period of
detention is a fixed period running from the date specified in the detention
order and ending with the expiry of that period or the period is automat-
ically extended by any period of parole grmted to the detenu.
E The Gujarat High Court allowed the Writ Petition of Sunil Fulchand
Shah (Petitioner in SL.P. (Crl.) No. 1492 of 1988) partly and quashed the
notification under Stction 9(1) of the Con~ervation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974 (for ~hort refer to as
'COFEPOSA Act'), but upheld the ordtr of detention and directed that
F the detenu shall have to undergo detention for a period of one year from
the date of his arrest in pursuance of the order of detention, excluding the
period during which he was out as a result of its earlier order quashing the
detention. He has, therefore, filed S.L.P. (Criminal) No. 1492 of 1988
challenging the said direction. In Writ Petition (Criminal) No. 248 of 1988
filed by him under Article 32 of the Constitution he has challenged his
G continued detention as illegal on the ground that the one year period which
had started running from 4.7.1986, the date on which he was detained
pursuant to the detention order, expired on 3.7.1987 and his detention
thereafter is without any authority of law. Sanjeev Kumar Agarwal is the
petitioner in Writ Petition (Criminal) No. 831 of 1990. He has challenged
H the order passed by the Central Government rejecting the representation
S.F SHAH v. U.O.I. [NA.'IAVATI,J.j 969
made by his wife for his release on 23.7.1990 on completion of one year A
from the date of his detention and not to extend his detention till 20.12.1990
by adding the period for which he was on parole. After hearing the writ
petition and S.L.P. filed by Sunil, a three Judge Bench of this Court on
1.5.1989 ordered that as the matter is of great public importance, these
cases may be referred to a Bench of five Hon'ble Judges. Two learned
B
Judges constituting the Bench (Pathak, CH and M.N. Venkatachaliah, J.)
referred to the four decisions of this Court in State of Gujarat v. Adam
Kasam Bhaya, [1981] 4 SCC 216, State of Gujarat v. Mohd. Ismail Juma,
(1981] 4 SCC 609, Poonam Lata v. M.L. Wadhawan, (1987] 3 SCC 347 and
Pushpadevi M. Jatia v. M.L. Wadhawan, (1987] 3 SCC 367, which support
the view that the period of detention intended by the detention order is c
not a fixed period but can be correspondingly extended if the detenu
absconds before he can be apprehended and dt:tained or the period of
detention is interrupted by erroneous judgment of the High Court and the
detenu is set free or tht.: detcnu is reh:ased on parole. They found some
difficulty in accepting that view as correct. They furthi.:r observt:d : "it seems D
to us prim a f acie that one possible view can be that if parole is granted the
period of parole should be counted within the total period of d<:tentiun
and not outside it". The third learned Judge (L.M. Sharma, J .) agreed with
the views expressed inAdam Kasam Bhaya's case and the otht:r three cases
referred to above; yet, he also agreed that in view of tht: great public
importance of the point involved these cases desi;;rve to be ht:ard by a E
Bench of five Hon'blc Judges. As question raised in the writ petition filed
by Sanjeev Kumar is also the same, it has been ordered to be heard with
Writ Petition (Criminal) No. 248 of 1988 filed by Sunil. That is how these
three cases an: placed for hearing befort: a five Judge Bench of this Court.
F
Section 3 of the COFEPOSA Act confers power on the O:ntral
Government, State Government and their officers if specially empowered,
to makt: an order for detention against a person t:ngaged in certain
prejudicial activities specified in that section. Section 10 prescribes the
maximum period for detention. It provides that the maximum period for
which any person may be detained in pursuance of any detention order tu G
which the provisions of Section 9 do not apply, shall be one year from the
date of detention and the maYimum period for which any person may be
detained in pursuance of any detention order to which the provisions of
Section 9 apply, shall he two years from the date of detention. Section 11
of the Act confers power on the State Government and the Central H
970 SUPREME COURT REPORTS [2000) 1 S.C.R.
A Government to revoke or modify the detention order. Sub-section 2 of that
section, howcver, provides that the revocation of a detention order shall
not bar the making of anothcr detention order under Section 3 against the
same person. Section 12 authorises the Government to rdease the person
detained for any specified period either without conditions or upon such
B conditions as that person accepts. The Gowrnment has the power under
that section to cancel his rL lease. The pi.;rson so ordered to be released
may be required to enter into a bond with sureties for the due obst:rvance
of the conditions on which b.e is released. If the person so released fails
without sufficient causc to surrender himself, he becomes liable to be
punished with imprisonment for a term which may extend to two years, or
C with fine, or with both. Notwithstanding anything contained in any other
law, Scctionl2 prohibits release of a pi:rson against whom a detention
order is made, whdher on bail or bail bond or otherwise.
A bare reading of Sectmn 10 makes it dear that the maximum period
D for which a person can be preventivdy detained under the COFEPOSA
Act is one ycar from the date of detention. But if a declaration is made
under Section 9(1) of the Act, then the maximum period for which he can
be detained is two yc<U"s from the date of detention. The period of om: year
or two years, as tile case may be, has to be counted from tht; date of
detention and from the date of the detention order. Though the Act
E permits revocation of the detention order dnd making of another detention
order against the sdffie person, it dot:s not specifically provide what shall
be tht: maximum period of dt:tention in such a case. But it has bi;;en hdd
that the total period of detention cannot cxcced om: year or two years, as
the case may be. Section 12 which confers power on tht: Government to
F release temporarily a person detained docs not specifically provide as to
how that period is to be counted while computing the maximum pt:riod of
detention.
The question as to the date from which the period of detention has
to be counted was raised for thc first timt: bcfon: this Court in Adam
G Kasam Bhaya's case. In that case the dctenu was detained und..:r
COFEPOSA pursuant to order of detention dated May 7, 1979. The High
Court of Gujarat quashed the order of detention. The State prefcrn:d an
appeal to this Court and when it eamt: up for hearing on September 15,
1981, a preliminary objection was raised on behalf of the detenu that, as
H the maximum period of detention permitted under Section 10 had expired,
-
,.(
S.F SHAH v. C.U.L '.:>IANAVA-:-I,J.]
the appeal had become infructuous. Dealing with that objection this Court A
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 B
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, c
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 D
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.
E
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 F
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 con-
tinues to be undt:r restrains as he would still be subjcct to rcstrictions
imposed on free and unfettered movement. Dealing with the first reason
G
this Court observed :
"Since in our view release on parole is a matter of judicial deter-
mination, 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." H
972 SUPREME COURT REPORTS (2000) 1 S.C.R.
A 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'
B 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. Accord-
ing to the Shorter Oxford English Dictionary, Vol. 1, p.531, the
word 'detain' means "to keep in confinement or custody". Webster's
c 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
D
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
E detenu is to be detained. Parole brings him out of confinement
from that place. Whatever may be the terms and conditions im-
posed 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?"
F 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
G
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
H consideration in computing, the maximum period of detention
S.F.SHAHv. U.0.1.(NANAVATl,J.) 973
authorised by Section 10 of the Act." A
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 B
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, C
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 D
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 E
189 of the: Code of Criminal Pron:dun.:, 1'}73 lcurrtspon<ling to
sub-section (3) of St:diun 426 uf the Cudt:J for excluding the period
of bail from the term of detention period."
As regards the status of the detenu who is released on parole this Court
observed as under : F
"Even if any conditions are imposed with a view to restrict the
movements of the detenu while on parole, the observance of those
conditions can never lead to an equation of the period of parole
with the period of detention. One need not look far off to see the G
reason because the observance of the conditions of parole,
wherever imposed, such as reporting daily or periodically before
a designated authority, residing in a particular town or city, travell-
ing within prescribed limits alone and not going beyond etc. will
not prevent the detenu from moving and acting as a free agent H
974 SUP Rf.ME COURT REPORTS (2000] 1 S.C.R.
A during the rest of the time or within the circumscribc:d limits of
travd and having full scope and opportunity to meet people of his
choice and have de,ilings with them, to correspond with one and
all and to have easy and effective communication wit.'1 whomsoever
he likes through telephone, teh:x etc. Due to the spectacular
B achicvemrnts in modt:rn communication system, a detenu, contacts
with all his rdations, friends and confederates in any part of the
country or even any part of the world and thert:by pursue his
unlawful activities if so inclined. lt will, therefore, bt: futile to
contend that the period of parole of a detenu has all the trappings
of actual detention in prison and as such both tht: periods should
c find a naLlral merger and tht:y stand denuded of thdr distinctive
characteristics. Any view of the contrary would not only be op-
posed to realities br1t would defoat the very purpose of preventive
detention and would also li:ad to making a mockery of the preven-
tive detention laws enacted by the Central or the States."
D
With respect to the object and purpose of the pn:ventive detention this
Court observed that :
'The entire scheme of preventive detention is based on the boun-
E den duty "f the Star.e to safeguard the inten;sts of the country and
the wdfar·~ of the people from the canka of anti national activities
hy anti-social ekment!i affecting the maintenance of public order
or the economic welfare of the cnuntry. Placing the \nterests of the
nation above the individual liberty of the anti-social and dangerous
dements who constitute a grave menace to society by their unlaw-
F
ful acts, t'1e preventive dt:tention laws haw bt:en made for effec-
tively keeping out Jf circulation the detenus during a prescribed
period by means of preventive ddrntion. Tht: objective underlying
preventiv.: dt:tention cannot be achieved or fulfillt:d if the detcnu
is granted parole and brought out of dt:tention.''
G
In Pounam Lata case this court rderred to its two earlit:r orders
pas~ed in Hwish :vfakhija v. State of U.P.,
[1987] 3 SCC 432 and Amritlal
Chammmal Jain Etc. v. State of Gujarat & Ors., in W.P. Nos. 1342-43,
1345-48, 1567/82and162/83. The order passed inHarish Makhija's case on
H 11.2.1985 was as under :
S.F SHAH v. l 1.0.I. [NA,\fAV >\TI J.J 975
"It is obvious that the period of parole cannot be counted towards A
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
B
"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."
c
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<1.tions made by a three Judge
D
Bench in Anuitlal Channwnal Jain's case to infer a direction by
this Court that a period of parok shall not be added to the period
of detention. The words used 'shall be taken into account' are
susceptible of an interpretation to the contrary. We find that an
order made by a bench of two Judges of this Court in Harish
JJakhija'.1 ca:-e (supra) unc4ui' <•L·Jlly laid d11wn that Cic period nf E
pa.role Cdlli1Ut be l"tH.lHh~d {.Q'.'<J.Jd~ th..,; periud oi" J.\.:te.ntion. 1'~1i~
accords with the view tdken by this Court in a Bench of two Judges
in State of Ciujarac v. Adam Kasam Bhaya, [ 1981] 4 SCC 216 and
State of Gujarat v. lsmail Juma, [1981] 4 SCC 609. In view of these
authorities which appear to be in consonance with the object and F
purpoM:: of the Act and the statutory provisions and also having
regard tu the fact that the direction made in Amritlal Cha1111umal
lain'~ case is c>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 G
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. H
976 SUPRFM!' COURT REPORTS [2000) l S.C.R.
A 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
B 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.
c
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
D 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 Con-
stitution 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
E period longer t'lan une <•r two yi:ars. lt is true that Article 22(7)(b) has
bt:en held permissive and, therefon.:, there can be a preventive dt.:tcntion
!t.:gislation which do'-'~ not provid.: for tbe maximum period of de.tention
and a person can be detaint.:d thereunder for a period lenger than one or
two years. That, however, cannot justify the view that the provision
F prescribing maximum period of detention should be construed liberally.
When the Par!iamcnt bas chosen to fix the maximum pt:riod. the question
as to how the said period is to be computed will have to bt: decided by
considering 6c object of the legislation and the relevant provision, the
words used in that provision and without being influenced by the nature of
power conferred by Article 22(7)(b). COFEPOSA, like all other preventive
G dt:tention laws, has been regarded as a Draconian Law as it takes away the
freedom and liberty of the citizen without a trial and on mere suspicion, It
is tolerated in a d<;mocracy governt:d by the rule of law only <1s a necessary
evil. Though the object of such legislation is to protect the nation and the
sockty against anti national and anti social activities, the nature of action
H permitted is preventive and not punitive. The distinction between preven·
S.F. SHAH v. U.O.I. [NANAVATI, J. J 977
tive detention and punitive detention has now been well recognized. A
Preventive detention is qualitatively different from punitive detention/sen-
tence. A person is preventively detained without a trial but punitive deten-
tion is after a regular trial and when he is found guilty of having committed
an offence. The basis of preventive detention is suspicion and its justifica-
tion is necessity. The basis of sentence is the verdict of the Court after a
regular trial. When a person is preventively detained his detention can be
B
justified only so long as it is found necessary. When a person is sentenced
to suffer imprisonment it is intended that the person so sentenced shall
remain in prison for the period stated in the order imposing sentence. The
term specified in the order of senlt:nce is intended to be actual ptriod of
imprisonment. On the other hand, preventive detention being an action of c
immediate necessity has to be immediate and continuous if it is to be
effective and the purpose of detention is to be achieved. The safeguards
available to a person against whom an order of detention has bten passed
are limited and, therefort, the Courts have always held that all the proce-
dural safeguards provided by the law should be strictly complied with. Any D
default in maintaining the time limit has been regarded as having the effect
of rendering the detection order or the continued detention, as the case
may be, ilkgal. The justification for preventive detention being necessity a
person can be detained only so long as it is found necessary to detain him.
If his d.:tention is found unnecessary, even during the maximum period
permiM,ible under the law then he has to be released from dctrntion E
forthwith. It is really in this context that section 10 and particularly the
word' 'may be detained' shall have to be intt:rpreted.
The object of enacting the COFEPOSA Act is to provide for preven-
tive detention in certain cases for the purposes of conservation and aug- F
mentation of foreign exchange and prevention of smuggling activities and
for matters connected therewith. The Act was enacted as violations of
foreign exchange regulations and smuggling activities are having an increas-
ingly deleterious effect on the national economy and thereby a serious
adverse effect on the security of the State. The power to detain is to be
exercised on being satisfied with respect to any person that with a view to G
preventing him from including in any prejudicial activity specified in Sec-
tion 3, it is necessary to make an order for his detention. The satisfaction
of the detaining authority must be genuine. It has, therefore, been held that
there must be a live and proximate link between the grounds of detention
and the purpose of detention. Unreasonable delay in making of an order H
978 SUPREME COURT REPORTS (2000] 1 S.C.R.
A of detention may lead to an inference that the subjectiw satisfaction of the
authority was not genuine as regards the necessity to prevent the person
from indulging in any prejudicial activity and to make an order of detention
for that purpose. So also long dnd unexplained delay in execution of the
order has been held to lead :o an inference that satisfaction was not
B genuine. Once the detaining authority is satisfied regarding the necessity
to make an order of detention a quick action is contemplated, and if
detention is to be cffoctive then it has to be continuous. Section 8(b)
requires the appropriate Government tu mak~ a rcfen:nce to the Advisory
Board within five weeks from the date of dct.:ntion of the person under a
detention order, in cases where Section 9 docs not apply. Considering the
C object of this provision it can be said that the period of five weeks will have
tu ht: counted from the date of detention and it cannot get enlarged or
extendcd because the ddenu is provisiunaily released either by the Court
or by tht Government during t:iat period. Once an order of detention is
made and the pc:rson is dt:tained pursuant thcrdo, then suspension is not
D contemplated and it can only be revoked or modified. That the detention
can be effective only if it is not interrupted is indicakd by Si:ction 12(6)
which provides that notwithstanding anything contained in any other law,
no person against whom a detention ordt:r is in force shall be rdeased
whether on bail or othcrwise. However, the power has been conferred upon
the Government to rdease the detenu for any specifo.:d period. In our
E opinion, all these provisions clearly indicaks the intention of the ltp;islature
that one.: det.:ntiun sLub it must run wnrinuously and that the power ln
n:lt:ast: on hail or (ithi:rwis<.: ha; been taken away as it does nor want the
period of detention tu be curtailed in any manner. I, then:fore, see no
justification for taking the view that the words 'may be detained' in
F Section 10 contemplate actual detention for the maximum period. [f the
word 'detain' is interpreted tu mean actually detain.:d for the maximum
period, then it wiII partake th~ character of punitive dckntion and nut
preventive detention.
The reason given by this Court in Poonam Lata case that the period
G during which the detenu is on parole cannot be said to be a period during
which he has been beld in custody pursuant to the order of his detention,
because he was not in actual custody then, does not appear to be sound.
The learm:d Attorney General also contended that the said observation
requin:s reconsideration as it i~ possible to take the view that a person
H temporarily released under Section 12 is in constructive custody. The
S.F. SHAH v. U.O.l. [NANAVATI,J.J 979
karned Solicitor General also submitted that in spite of an order under· A
- Section i 2 it can be said that the detenu is not a free person during that
period as his freedom and '.iberty would be subject to the conditions
imposed by the Government. A temporary release under Section 12 of the
person dt:tained does not change his status as his freedom and liberty are
not fully restored. Therefor!!, the period of tt!mporary release on parole
B
cannot be excluded from the maximum period of detention. Though the
purpose and object of Section to is to prescribe not only the maximum
period of detention but also for the mt:thod of computation of the period
as contended hy tht: kamed Attorney General, the only inference that can
be drawn tht:refrom is that the period of dett:ntion has to be computed
from the date of actual detention and not from thi; date of the order of c
ddention. Since Section 10 does not prescribe any other method, it is not
proper to draw a further inference that the maximum period of detention
is to be computed by excluding the period during which the dt:tenu was
released on parolt:. It was also contt:nded by the learned Attorney General
that the dctcnu cannot be permitted to take advantage of an order of D
parole or an invalid judgment of the Court In such a case, there is not the
question of extending the period of detention but ensuring that the original
period of one year is worked out. It will not amount to punishing the
detenu for any wrong done by the Court but it would amount to not
pt:rmitting the detenu to take advantage of an order of parole or a wrong
E
judgment or order of the (. 'ourt. For the reasons already stakd above, even
this contention cannot be: accepkd. The Act contemplates ~untinuous
period of detention. If in spite of that any interruption i> 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 F
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 G
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 H
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
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