2000 (2) TMI 792 - SC - Indian Laws

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 automatically extended by any period or parole granted to the detenu? Held that - Appeal allowed. Harish Makhija Poonam Lata and Pushpa Devi do not lay down the correct law on the point. I further hold that if the period of detention is interrupted either by an order of provisional release made under Section 12 or by an order of the Court then the maximum period of detention to that extent gets curtailed and neither the period of parole nor the period during which the detenu was released pursuant to the order of the court can be excluded while computing the maximum period of detention.

Issues Involved:
1. 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 automatically extended by any period of parole granted to the detenu.
2. Whether the period of detention is extended if the High Court erroneously releases the detenu and the Supreme Court later reverses that decision.

Detailed Analysis:

1. Fixed Period of Detention vs. Extension by Parole:
The Supreme Court examined whether the period of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) is a fixed period or if it is extended by any period of parole granted to the detenu. The Court concluded that the period of detention specified in the detention order commences from the date of actual detention and not from the date of the order of detention. The period of detention is to be computed from the date of actual detention as per Section 10 of COFEPOSA. The Court held that parole does not interrupt the period of detention and needs to be counted towards the total period of detention unless the terms for grant of parole, rules, or instructions prescribe otherwise. Parole is considered a form of temporary release and does not suspend the sentence or the period of detention but changes the mode of undergoing the sentence. The detenu remains in legal custody of the State and under its control during parole.

2. Detention Period and Erroneous High Court Orders:
The Court also addressed whether the period of detention is extended if the High Court erroneously releases the detenu and the Supreme Court later reverses that decision. The Court held that the quashing of an order of detention by the High Court brings such an order to an end. If an appeal is allowed against the order of the High Court, the question of whether the detenu should be made to surrender to undergo the remaining period of detention depends on various factors, including the lapse of time between the date of detention, the High Court order, and the Supreme Court order. A detenu need not be sent back to undergo the remaining period of detention after a long lapse of time unless a proximate temporal nexus exists between the period of detention prescribed and the date when the detenu is required to be detained pursuant to the appellate order. The actual period of incarceration cannot exceed the maximum period of detention as fixed in the order.

Summary of Conclusions:
1. Personal liberty is a cherished freedom, and preventive detention laws must be strictly construed.
2. Section 10 of COFEPOSA prescribes the maximum period of detention and the method of computation, which starts from the date of actual detention.
3. Parole may be granted as a temporary release by the Government or its functionaries, and the period of parole is counted towards the total period of detention unless otherwise prescribed.
4. Courts generally cannot grant temporary release on parole during the period an order of detention is in force due to the express prohibition in Section 12(6) of COFEPOSA.
5. Parole does not interrupt the period of detention and must be included in the total period of detention.
6. The quashing of a detention order by the High Court ends that order, and whether the detenu should undergo the remaining period of detention depends on various factors, including the lapse of time.
7. If a long time has not lapsed or the period of detention has not expired, the detenu may be sent back to undergo the balance period of detention. The period during which the detenu was free due to an erroneous order may not be given as a set-off against the total period of detention.

The writ petitions were allowed, and the special leave petition was disposed of in terms of the above order.

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