THE SECRETARY TO GOVERNMENT, PUBLIC (LAW AND ORDER-F) AND ANOTHER.versusNABILA AND ANOTHER.

                      [2014) 12 S.C.R. 405


    THE SECRETARY TO GOVERNMENT, PUBLIC (LAW                         A
            AND ORDER-F) AND ANOTHER.
                                 v.
                    NABILA AND ANOTHER.
               (Crimnal Appeal No. 2545 of 2014)
                      DECEMBER 09, 2014                              B

         [M.Y. EQBAL AND SHIVA KIRTI SINGH, JJ.]

         National Security Act, 1980: s.3(1)(a) - Preventive
   detention - Order of detention primarily based on the             C
   confession!J/ statement leading to seizure of incriminating
   articles containing official secrets relating to Indian Defence
   Forces - Habeas Corpus petition by wife of detenu on the
   ground that the detenu was detained on a solitary ground case
   and sponsoring authority has failed to place any material         D
   before the detaining authority to show that either the detenu
- himself or his relatives have filed bail application - High
   Court setting aside the order of detention - Held: The detenu
   was taken into custody in September, 2012, and the order of
   detention was passed in December, 2012 - The said order           E
   of detention was finally quashed by the High. Court .in April
   2013 - Apparently, therefore, a long time lapsed inasmuch
   as the period of detention fixed in the order of detention
   already expired in April, 2014 - The aetenu shall not be taken
   into custody for serving the remaining period of detention        F
   unless there still exist materials to the satisfaction of the
   detaining authority for putting him under detention - In the
   facts and circumstances of the case, the impugned order is
   set aside - However, initial detention. order having been
 · expired long back, it is for the detaining authority to take a    G
   decision in accordance with law - Constitution of India, 1950
   - Article 21.

       Allowing the appeal, the Court

                              . 405                                  H
    406     SUPREME COURT REPORTS             (2014] 12 S.C.R.


A       HELD: 1. Indisputably; the object of law of preventive
   detention is not punitive, but only preventive. In case of
   preventive detention, no offence is to be proved nor is
   any charge formulated. The justification of such detention
   is suspicion and reasonability and there is no criminal
B conviction which can only. be warranted by legal
   evidence. However, the detaining authority must keep in
   mind while passing the order of detention the civil and
  ·constitutional right granted to every citizen by Article 21
   of the Constitution of India inasmuch as no person. shall
c be deprived of life and liberty except in accordance with·
   the procedure established by law. The laws of Preventive
   Detention are to be strictly construed and the procedure
   provided must be meticulously complied with. [Para 13]
   [412-B-D]

D       2. In the instant case, the High Court quashed the
   order of detention mainly on the ground that the detenu
   was in remand in. connection with the solitary ground
 · case when there was no material before the detaining
   authority to show that either the detenu himself or his
E relatives are taking steps to file application for bail in the
   solitary·ground case. The view taken by the High Court
   while passing the impugned order cannot be sustained
   in law. Admittedly, the detenu was confined in jail since
   16.9.2012. The detention order was passed on 5.12.2012,
F after about.three months from the date of arrest, and the
   said order of detention was finally quashed by the High
   Court by passing the impugned order on 26.4.2013.
   Apparently, therefore, a long time has lapsed inasmuch
   as the period of detention fixed in the order of detention
G has already expired in Aprii, 2014. Even if the impugned
   order passed by the High Court is set aside, the detenu
   cannot and shall not be taken into custody for serving
   the remaining period of detention unless there still exist
   materials to the satisfaction of the detaining authority for
H putting him under detention. In other words, initial
  SECRETARY TO GOVERNMENT, PUBLIC (LAW                 407
          AND ORDER-F) v. NABILA
detention order having been expired long back, it is for      A
the detaining authority to take a decision in accordance
with law. [Paras 14, 19, 21] [419-E~F; •18-C-D; 422-G-H;
423-A]

     Shiv Ratan Makim v. Union of l,1dia 1985 (3) Suppl.
                                                              8
SCR 843: (1986) 1 SCC 404; Union of India & Anr. v. Chhaya
Ghosal & Anr. (2004).10 SCC 97; Haradhan Saha v. State
of West Bengal and Ors. 1975 (1) SCR 778: (1975) 3 SCC
198; Ahmad Nssar v. State of Tamil Nadu & Ors. 1999 (3)
Suppl. SCR 657: (1999) 8 SCC 473; Baby Devassy Chul/y         C
v. Union of India & Ors. 2012 (9) SCR 515 : (2013) 4 SCC
531; Sunil Fulchand Shah v. Union oflndia & Ors. 2000 (1)
SCR 945: (2000) 3 SCC 409; Chanddrakant Baddi v.
Additional District Magistrate & Police Commissioner & Ors.
2008 (7) SCR 163 : (2008) 17 SCC 290; Pebam Ningol
Mikoi Devi v. State of Manipur and Ors. 2010 (12) SCR 429     D
: (2010) 9 SCC 618; T. V. Sravanan alias A.R. Prasana
Venkatachaariar Chaturvedi v. State through Secretary and
Anr. (2006) 2 SCC 664; Ayub alias Pappukhan Nawabkhan
Pathim v. S.N. Sinha and Anr. 1990 (3) SCR 927: (1990) 4
SCC 552 - referred to.                                        E

                    Case Law Reference:
    1985 (3) Suppl. SCR 843      referred to     Para 4
    (2004) 10 sec 97             referred to     Para 4
                                                              F
    1975 (1) SCR 778             referred to     Para 5
    1999 (3) Suppl. SCR 657      referred to     Para 5
    2012 (9) SCR515              referred to     Para 5
    2000 (1) SCR 945             referred to     Para 6       G
    2008 (7) SCR 163             referred to     Para 6
    2010 (12) SCR 429            referred to     Para 7           .,

    c2006) 2 sec 664             referred to     Para 7
                                                              H
    408      SUPREME COURT REPORTS                 [2014] 12 S.C.R.


A         1990 (3) SCR 927               referred to       Para 8

        CR.IMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 2545 of 2014.   ·       '

        From the Judgment & Order dated 26.04.2013 of the High
B   Court of Judicature at Madras, Madurai Bench in H.C.P. No.
    15 of 2013.                    . I

        L. Nageshwara Rao, Subrainonium Prasad, AAG, M.
    Yogesh Kanna, Asha Gopalan Nair, Sushma Suri for the
c   Appellant.

          S. Gowthaman, S. Sethu Mahendran, B. Krishna Prasad
    for the Respondents.

          The Judgment of the Court was delivered by
D
          M.Y. EQBAL, J. 1. Leave granted.

        2. By way of present appeal by special leave, Secretary
   to the Government of Tamil Nadu, Public (Law and Order-F)
   Department, Chennai has assailed the Order dated 26.4.2013
E passed by the Division Bench of the Madras High Court at
   Madurai Bench by which order of detention passed by the
   appellant under Section 3 (1)(a)of fhe National Security Act
 · 1980 has been quashed.

F        3. The respondent-writ petitioner, being the wife of the·
  .detenu, by way of Habe.as Corpus Petition before the High
   Court, challenged the detention order mainly on the ground that
   the detenu was detained on the solitary ground case and the
   sponsoring authority has failed to place any material. before the
G detaining authority to show that either the detenu himself or his
   relatives have taken any step to file bail application in a solitary
   ground case. The High Court held that the satisfaction arrived
   at by the detaining authority that there is real or imminent
   possibility of the detenu being enlarged on bail is vitiated in law.

H         4. Assailing the impugned order, Mr. L. Nageshwara Rao,
    SECRETARY TO GOVERNMENT, PUBLIC (LAW                      409
      AND ORDER-F) v. NABILA [M.Y. EQBAL, J.]
  learned senior counsel appearing for the appellants, submitted     A
  that the detention of the detenu on the solitary ground case
  cannot be held to be erroneous and even on solitary ground
  the detenu can be detained in custody if sufficient materials on
  record are available to the satisfaction of the authority
· concerned. Learned counsel relied upon the decision of this        B
   Court in Shiv Ratan Makim vs. Union of India, (1986) 1 SCC
  404, and Union of India & Anr. vs. Chhaya Ghosal & Anr.,
   (2004) 10 sec 97.

       5. Mr. Rao then submitted that the High Court has not         C
  appreciated the law in holding that the subjective satisfaction
  arrived at by the detaining authority that there is a real or
  imminent possibility of the detenu being enlarged on bail and
  if he is released on bail, he would indulge in such activities
  which would be prejudicial to the security of the State. In this
  connection, learned senior counsel relied upon Constitution        D
  Bench judgment of this Court in the case of Haradhan Saha
  vs. State of West Bengal and others, (1975) 3 SCC 198,
  Ahmad Nssar vs. State of Tamil Nadu & Ors., (1999) 8 SCC
  473 and Baby Devassy Chµ/ly vs. Union of India & Ors.,
  (2013) 4 sec 531.                                                  E

     . 6. Mr. Rao, learned senior counsel, lastly submitted that
  by reason of the detention order dated 5.12.2012 the detenu
  remained in jail till the order passed by the High Court dated-
  26.4.2013. On the question as to whether the detenu is required F
  to undergo remaining period of detention, learned counsel fairly
  submitted that the matte~is to be sent to the detaining authority
  to decide the same in accordance with law. In this regard,
  learned counsel relied upon the decision of this Court in the
  case of Sunil Fulchand Shah vs. Union of India & Ors., G
  (2000) 3 SCC 409 and Chanddrakant Baddi vs. ADM &
  Police Commissioner & Ors., (2008) 17 SCC 290.

       7. Mr. S. Gowthaman, learned counsel appearing for
  respondent no.1, at the very outset submitted that no bail
  application was filed on the date of passing of detention order    H
   410       SUPREME COURT REPORTS               [2014) 12 S.C.R.


A although the respondent was confined in jail since 16.9.2012
   and hence the detaining authority ought to have been satisfied
   while passing the order of detention that the detenu was likely
   to be released on bail. In this regard, learned counsel relied
   upon the decision of this Court in Pebam Ningol Mikoi Devi
B vs. State of Mifnipur and others, (2010) 9 SCC 618. Learned
   counsel also relied upon T. V. Sravanan alias A.R. Prasana ·
 . Venkatachaariar Chaturvedi vs. State through Secretary
   and another, (2006) 2 sec 664.

       8. On the question of detention on solitary ground, learned
C counsel submitted that no crimin~I prosecution against the
  detenu is pending in any court of law except the instant case
  where the detenu was detained without any subjective
  satisfaction. There is no material against the detenu for the .
  purpose of passing order of detention. In this connection,
D learned counsel relied upon the case of Ayub alias
  Pappukhan Nawabkhan Pathan vs. S ..N. Sinha and
  another, (1990) 4 sec 552.

        9. Learned counsel, on the question of undergoing
E remaining period of detention when the period of detention has
  expired, relied upon Fulchand Shah vs. Union of India and
  Others (supra). Mr. Gowthaman lastly contended that very
  stringent conditions have been imposed while allowing the bail
  petition, as a result he has not gone to his hometown and is
F always available in Trichy. In that view of the matter there is no
  need for the detenu to undergo the remaining period of
  detention.                       · ·       ·
                                          {:~


       1O. We have heard the learned counsel appearing for the
  parties and perused the orders passed by the Detaining
G Authority and the High Court.

       11. The Habeas Corpus Writ PetiUbn under Article 226 of
  the Constitution of India was filed by the respondent No.1, the
  wife of the detenu. The order of detention was primarily based
H on the information received by the Sub-Inspector of Police Q.
  SECRETARY TO GOVERNMENT, PUBLIC (LAW                          411
    AND ORDER-F) v. NABILA [M.Y. EQBAL, J.]
Branch, CID, Trichy, who went to TVS toll gate, Trichy along with A
his force and detenu was arrested and confessional statement
was recorded which lead to seizure of incriminating articles
containing official secrets relating to Indian Defence Forces and
other articles. The Inspector of Police 'Q' Branch CID, Karur
received those incriminating and other articles along with the B
special report and registered a case in .Crime No.1 of 2012
under Sections 3,4, and 9 of Official Secrets Act, 1923 read
with Section 120(B) IPC. Later on the detenu was produced
before the Court of Judicial Magistrate No.2, Trichy and was ·
remanded to judicial custody and his remand was periodically            c
extended. The Detaining Authority being satisfied with the
material placed by the Sponsoring Authority that the activities
of the detenu are prejudicial to the security of the State, passed
the order of detention on 5.12.2012.

     12. As noticed above, the order of detention in the Habeas D
Corpus Petition was challenged before the High Court mainly
on the ground that the detenu is involved in a solitary case and
has not filed any application for bail. But the order of detention
was passed without recording any subjective satisfaction as to
the real imminent possibility of the detenu being enlarged on E
bail as would indulge in such activities which have prejudicial
to the security of the State . The High court while allowing the
habeas corpus petition and quashing the order of detention ·
observed as under:-
                                                                        F
     "A perusal of paragraph No.11 of the grounds of detention
     would disclose that the detenu is in remand in connection
     with the solitary grounds case and admittedly he has not
     filed any bail application. The sponsoring authority has
     failed to place any material before the detaining au~hority        G
     to show that either the detenu himself or his relatives are
     taking steps to file application for bail in the solitary ground
     case and in the absence of such vital and cogent materials,
     the subjective satisfaction arrived at by the detaining
     authority that there is a real or imminent possibility of the      H
    412       SUPREME COURT REPORTS                [2014] 12 S.C.R.


A         detenu being enlarged on bail and if he is released on bail,
          he would indulge in such activities which would be
          prejudicial to the security of the state, is vitiated and
          therefore on this sole ground the impugned order of
          detention is liable to be quashed."
B
       13. Indisputably, the object of law of preventive detention
  is not punitive, but only preventfve·. In case of preventive
  detention no offence is to be proved nor is any charge
  formulated. The justification of such detention is suspicion and
C reasonability and there is rio criminal conviction which can only .
  be warranted by legal evi.dence. However, ihe detaining
  authority must keep in mind while passing the order of detention
  the civil and constitutional right granted to every citizen by Article
  21 of the Constitution of India inasmuch as no person shall be
  deprived of life and liberty except in accordance with the
D procedure established by law. The laws of Preventive Detention
  are to be strictly construed and the procedure provided must
  be meticulously complied with.

       14. In the instant case, as noticed above, the High Court
E quashed the order of detention mainly on the ground that the
  detenu was in remand in connection with the solitary ground
  case when there was no material before the detaining authority
  to show that either the detenu himself or his relatives are taking
  steps to file application for bail in the solitary ground case. In
F our opinion, the view taken by the High·Court while passing the
  impugned order cannot be sustained in law. This point was
  considered by this Court in the case of Union of India & Anr.
  vs. Chhaya Ghosa/ & Anr., (2004) 10 SCC 97, and
  observed:-

G         "23. So far as the finding of the High Court that there was
          only one incident is really a conclusion based on erroneous
          premises. It is not the numberof acts which determine the
          question as to whether detention is warranted. It is the
          impact of the act, the factual position as highlighted goes
H         to show that the financial consequences were enormous
  SECRETARY TO GOVERNMENT, PUBLIC (LAW                      413
    AND ORDER-F) v. NABILA [M.Y. EQBAL, _J.)
    and ran into crores of rupees, as alleged by the detaining      A
    authority. The High Court seems to have been swayed
    away that there was only one incident and none after
    release on bail. The approach was not certainly correct
    and the judgment on that score also is vulnerable. At the
    cost of repetition it may be said that it is not the number     B
    of acts which is material, it-is ihe impact and effect of the
    act which is determinative. The High Court's conclusions
    in this regard are therefore not sustainable."         ·

     15. In Shiv Ratan Makim's case (supra), the same               C
question arose where on the basis of information received the
customs officer intercepted one auto-rickshaw and on search
two foreign mark gold in the shape of round tablets were
recovered from the possession of the husband of respondent
no.1. He was immediately arrested and was detained by the
order passed by the government under Section 3 of the               D
COF.EPOSA Apt. The said order was assailed on the ground
that the detention order was passed on the solitary incident
which cannot be sustained in law. This Court, while rejecting
the said view, held:-
                                                                    E
    "3. Though several grounds were taken in the writ petition
    only three were seriously pressed by the learned counsel
    appearing on behalf of the petitioner. The first ground was
    that the order of detention was based on the solitary
    incident in which two pieces of foreign marked gold were        F
    recovered from the pocket of the trousers of the petitioner
    on November 20, 1984 and apart from this incident there
    were no other incidents showing that he was habitually
    smuggling gold. The second ground was that considerable
    time had elapsed between the date when he was found             G
    to be carrying two pieces of foreign marked gold and the
    date of the order of detention and this long lapse of time
    showed that the order of detention was vitiated by mala
    fides. And the last ground was that the order of -detention
    was made with a view to circumventing or bypassing the          H
    414       SUPREME COURT REPORTS                · [2014] 12 S.C.R.


A         criminal prosecution instituted against the petitioner and
          the detaining authority had not applied its mind to the vital
          aspect that the power of detention cannot be used to
          subvert, supplant or substitute the punitive law. We do not
          think any of these three grounds can be sustained.
B
      · 4. So far the first ground is concerned, it is obvious that
        having regard to the nature of the .activity of smuggling, an
        inference could legitimately be drawn even from a single
        incident of smuggling that the petitioner was indulging in
        smuggling of gold. Moreover, the written statement given
c       by the petitioner clearly indicated that the petitioner was
        engaged in the business of purchase and sale of foreign
        marked gold and ·that this incident in which he was caught
        was not a solitary incident. The facts stated by the petitioner
        in his written statement could legitimately give rise to the
D       inference that the petitioner was a member of a smuggling
        syndicate and merely because only on.e incident of
        smuggling by the petitioner came to light, it did not mean·
        that this was the first and only occasion on which the
        petitioner tried to smuggle gold. There can be no doubt
E       that having regard to the nature of the activity and the
        circumstances in which the petitioner was caught
        smuggling gold and the facts set out·by him in his written
        statement, the second respondent was justified in reaching
        the satisfaction that the petitioner was engaged smuggling
F       gold and that with a view to preventing him from smuggling
        gold, it was necessary to detain him:

        16. Mr. Gowthaman, learned counsel appearing for the.
  respondent vehemently argued that on the date of passing the
  detention order no bail was sought for by the detenu hence the
G detaining authority while passing the impugned order must be
  satisfied that the detenu was likely to be released on bail.
  Learned counsel submitted that there is no material or evidence
  in this regard. In our view, the. detention order qmnot be set
H aside merely on this ground. The Constitution Bench of this
   SECRETARY TO GOVERNMENT. PUBLIC (LAW                        415
     AND ORDER-F) v. NABILA [M.Y. EQBAL, J.]
  Court in Haradhan Saha vs. State of West Bengal & Others,            A
· (1975) 3 sec 198, while considering the constitutional validity
  of maintenance of Internal Security Act 1!).71, as being ultra
  vires and violates Article 19 and 21 of the Constitution of India,
  observed:-
                                                         .
       "32. The power of preventive detention is qualitatively
                                                                       B

      different from punitive detention. The power of preventive
      detention is a precautionary power exercised in
      reasonable anticipation. It may or may not relate to an
      offence. It is not a parallel proceeding. It does not overlap    c
      with prosecution even if it relies on certain facts for which
      prosecution may be launched or may have been launched.
      An order of preventive detention may be, made before or
      during prosecution. An order of preventive detention may
      be made with or without prosecution and in anticipation or
                                                                       0
      after discharge or even acquittal. The pendency of
      prosecution is no bar to an order of preventive detention.
      An order of preventive. detention is also not a bar to
      prosecution.

      33. Article 14 is inapplicable because preventive detention      E
      and prosecution are not synonymous. The purposes are
      different. The authorities are different. The nature of
      proceedings is different. In a prosecution an accused is
      sought to be punished for a past act. In preventive
      detention, the past act is merely the material for inference     F
      about the future course of probable conduct on the part of
      the detenu.

       34. The recent decisions of this Court on this subject are
       many. The decisions in Borjahan Gorey v. State of WB.,          G
       Ashim Kumar Ray v. State of WB.; Abdul Aziz v. District
       Magistrate, Burdwan and Debu Mahato v. State of WB.
     · correctly lay down the principles to be followed as to
       whether a detention order is valid or not. The decision in

                                                                       H
    416       SUPREME COURT REPORTS               · [2014] 12 S.C.R.


A         Biram Chand v. State of U.P., (1974) 4 SCC 573, which
          is a Division. Bench decision of two learned Judges is
          contrary to the other Bench decisions consisting in each
          case of three learned Judges. The principles which can be
          broadly stated are these. First, merely because a detenu
B         is liable to be tried in a criminal court for the commission
          of a criminal offence or to be proceeded against for
          preventing him from committing offences dealt with in
          Chapter VII I of the Code of Criminal Procedure would not
          by itself debar the Government from taking action for his
c         detention under the Act. Second, the fact that the Police
          arrests. a person and later on enlarges him on bail and
          initiates steps to prosecute him under the Code of Criminal
          Procedure and even lodges a first information report may
          be no bar against the District Magistrate issuing an order
          under the preventive detention. Third, where the concerned
D
          person is actually in jail custody at the time when an order
          of detention is passed against him and is not likely to be
          released for a fair length of time, it may be possible to
          contend that there could be no satisfaction on the part of
          the detaining authority as to the likelihood of such a person
E         indulging in activities which would jeopardise the security
          of the State or the public. order. Fourth, the mere
          circumstance that a detention order is passed during the
          pendency of the prosecution will not violate the order. Fifth,
          the order of detention is a precautionary measure. It is
F         based on a reasonable prognosis of the future behaviour·
          of a person based on his past conduct in the light cf the
          surrounding circumstances."

      17. The submission of Mr. GoWthaman that in abse.nce of
G any satisfaction having been recorded by the authority while
  passing the impugned order of detention that detenu was likely
  to be released on bail cannot be accepted. The detaining
  authority .has arrived at the conclusion that there is a real and
  imminent possibility of the detenu being enlarged on bail cannot
H
       SECRETARY TO .GOVERNMENT, PUBLIC (LAW                     417
         AND ORDER-F) v. NABILA [M.Y. EQBAL, J.)
     be said to be erroneous. This point was considered by this         A
     Court in the case of Ahamed Nassar vs. State of Tamil
     Nadu, (1999) 8 SCC 473, held as u.nder:-

         "46. So before the detaining authority, there existed not
          only the order dated 12-4-1999 rejecting his bail 8
          application but the contents of the bail application dated
          1-4-1999. The averments made therein are relevant
          material on which subjective satisfaction could legitimately
..        be drawn either way. Thus in spite of rejection of the bail·
          application by a court, it is open to the detaining authority C
          to come to his own satisfaction based on the contents of
          the bail application keeping in mind the circumstances that
          there is likelihood of the detenu being released on bail.
          Merely because no bail application was then pending is
          no premise to hold that there was no likelihood of his being
          released on bail. The words "likely to be released" connote D
          chances of being bailed out, in case there be pending bail
          application or in case if it is moved in future is decided.
          The word "likely" shows it can be either way. So without
          taking any such risk if on the facts and circumstances of
          each case, the type of crime to be dealt with under the E
          criminal law, including contents of the bail application, each
          separately or all this compositely, all would constitute to be
          relevant material for arriving at any conclusion. As the
          contents of bail application would vary from one case to
          the other, coupled with the different set of circumstances F
          in each case, it may be legitimately possible in a given
          case for a detaining authority to draw an inference that
        · there is likelihood of the detenu released on bail. The
          detention order records:
                                                                         G
          "The Administrator of the National Capital Territory of Delhi
          is aware that you are in judicial custody and had not moved
          any bail application in the court(s) after 9-6-1992 but
          nothing prevents you from moving bail applications and
                                                                        H
    418       SUPREME COURT REPORTS                 [2014] 12 S.C.R.

A         possibility of your release on. bail cannot be ruled out in
          the near future. Keeping in view your modus operandi to
          smuggle gold into India and frequent visits to· 1ndia, the
          Administrator of the National Capital Territory of Delhi is
          satisfied that unless prevented you will continue to engage
B         yourself in prejudicial activities once you are released."

          18. Having regard to the law aiscussed hereinabove, the
    impugned order passed by the High Court quashing the order
    of detention on solitary ground case is erroneous in law.             ~·

C        19. Admittedly, the detenu was confined in jail since
    16.9.2012. The detention order was passed on 5.12.2012, after
  about three months from the date of arrest, and the said order
  of detention was finally quashed by the High Court by passing
  the impugned order on 26.4.2013. The question, therefore, that
D needs to be considered is as to whether if the impugned order
  passed by the High Court is quashed, can the detenu be then
  asked to undergo the remaining period of detention. In this
  regard Mr. Rao relied upon the Constitution Bench judgment
  of this Court in Sunil Fulchand Shah vs. Union of India and
E Others, (2000) 3 SCC 409, and fairly submitted that it is for
  the detaining authority to consider the matter afresh. Relevant
  paragraphs from the judgment in Fulchand Shah's case are
  worth to be quoted'hereinbelow:- .

          ."32. The quashing of an order of detention by the High
F         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 of factors and in particular on the question
G         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 lapse of time, when even the maximum prescribed
H
SECRETARY TO GOVERNMENT, PUBLIC (LAW                       419
  AND ORDER-F) v. NABILA [M.Y. EQBAL, J.] ,
  period .intended in the order of detention has expired,         A
  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 the State is able to satisfy the court about the      B
  desirability of "further" or "continued" detention. Where,
  however, a 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        c
  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 as
  indicated in the order of detention, though normally the        0
  period during which the detenu was free on the basis of
  such an erroneous order may noi be given as a "set-off'
  against the total period of detention. The actual period of
  incarceration cannot, however, be permitted to exceed the
  maximum period of detention, as fixed in the order, as per      E
  the prescription of the statute.

  33. The summary of my conclusions by way of answer to
  the questions posed in the earlier portion of this order are:

         1. Personal liberty is one of the most cherished         F
         freedoms, perliaps more important than the other
         freedoms guaranteed under the Constitution. It was
         for this reason that the Founding Fathers enacted
         !he safeguards in Article 22 in the Constitution so
         as to limit the power of the State to detain a person    G
         without trial, which may otherwise pass the test of
         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           H
     420       SUPREME COURT REPORTS                 (2014) 12 S.C.R.


A                 maintenance of public order, must be strictly
                  construed. However, where individual liberty comes
                  into conflict with an interest of the security of the
                  State or public order, then· the liberty of the
                  individual must give way to the larger interest of the
B                 nation.




c                 5. T~at parole does not interr~pt 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.
D
                  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 the High
                  Court, the question whether or not the detenu should
                  be made to surrender to undergo the remaining
E                 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 theremaining
           period of detention, after a fong lapse of time, when even
           the maximum prescribed period intended in the order of
           detention has expired, unless there still exists a proximate
.G         temporal nexus between the period of detention indicated
           in the order by which 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.·
H
  SECRETARY TO GOVERNMENT, PUBLIC (LAW                      421
    AND ORDER-F) v. NABILA [M.Y. EQBAL, J.]
   . 7. That where, however, a long time has not lapsed or the A
     period of detention initially fixed in the order of detention
     has 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 · B
     was free on the basis of an 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' c
     against the total period of detention. The actual period of
     incarceration cannot, however, be permitted to exceed the
     maximum period of detention, as fixed in the order, as per
     the prescription of the statute."                   ·

    20. Fulchand Shah's case was also considered in the case        D
of Chandrakant Baddi vs. Additional District Magistrate &
Poljce Commissioner and Others, (2008) 17 SCC 290,
paragraph nos.5 & 6 of which are reproduced hereunder:-

    "5. This judgment (in Sunil Fulchand Shah v. Union of           E
    India) was followed in A/agar case, (2006) 7 SCC 540,
    and in para 9 it was observed that: (SCC p. 542)

           "9. The residual question is whether it would be
           appropriate to direct the respondent to surrender
           for serving remaining period of detention in view of     F
           passage of time. As was noticed in Sunil Fulchand
           Shah v. Union of India, (2000) 3 SCC 409, and
           State of T.N. v. Kethiyan Perumal, (2004) 8 SCC
           780, it is for the appropriate State to consider
           whether the impact of the acts, which led to the         G
           order of detention still survives and whether it would
           be desirable to send back the detenu for serving
           remainder period of detention. Necessary order in
           this regard shall be passed within two months by
           the appellant State. Passage of time in all cases        H
                                      '
    422     SUPREME COURT REPORTS                 [2014] 12 S.C.R.


A              cannot be a ground not to send the detenu to serve
               remainder of the period of d~tention. It all depends
               on the facts of the act and the continuance or
               otherwise of the effect of the objectionable acts. The
               State shall consider whether there still exists a
B              proximate temporal nexus between the period of
               detention indicated in the order by which the detenu
               was required to be detained and the date when the
               detenu is required to be detained pursuant to the
               present order."
c        6. A reading of the above quoted paragraphs would reveal
         that when an order of a court quashing the detention is set
         aside, the remittance of the detenu to jail to serve. out the
         balance period of detention does not automatically follow
         and it is open to the detaining· authority to go into the
D      . various factors delineated in the judgments aforequoted so .
         as to find out as to whether it would be appropriate to send·
         the detenu back to serve out the balance period •of
         detention. In this view of the matter, we are of the opinion
         that the detaining authority must be permitted to re-examine.
E        the matter and to take a dedsion thereon within a period
         of 3 months from the date of the supply of the copy of this
         order. We further direct that during this period the interim
         order in favour of the appellant given by us on 30-4-2007
         will continue to operate."
F
       21. As noticed above, the detenu was taken into custody
  in September, 2012, and the order of detention was passed
  in December, 2012. The said order of detention was finally
  quashed by the High Court in terms of Order dated 26.4.2013.
  Apparently, therefore, a long time has lapsed inasmuch as the
G period of detention fixed in the order of detention has already
  expired in April, 2014. Even if the impugned order passed by
  the High Court is set aside, the detenu cannot and shall not be
  taken into custody for serving the remaining period of detention
  unless there still exist materials to the satisfaction of the
H
  SECRETARY TO GOVERNMENT, PUBLIC (LAW                       423
    AND ORDER-F) v. NABILA [M.Y. EQBAL, J.]
detaining authority for putting him under detention. In other       A
words, initial detention order having been expired long back, it
is for the detaining authority to take a decision in accordance
with law.

     22. In the facts and circumstances of the case and after       B
giving out anxious consideration in the matter, we are of the
considered opinion that the impugned order passed by the
High Court cannot be sustained. Therefore, this appeal is
allowed and the impugned order passed by the High Court,
quashing the order of detention, is hereby set aside with the       C
direction and observations made hereinabove.

Devika Gujral                                     Appeal allowed.