1987 (4) TMI 477 - SC - Indian Laws

Whether the period of parole has to be excluded in reckoning the period of detention under sub-section (1) of section 3 of the Act? Held that - The legislative scheme keeping the purpose of the statute and the manner of its fulfilment provided thereunder would not justify entertaining of an application for release of a detenu on parole. Since in our view release on parole is not a matter of judicial determination apparently no provision as contained in the Code of Criminal Procedure relating to the computation of the period of bail was thought necessary in the Act. But we would like to point out to the Government the desirability of inserting a provision like sub-s.(4) of s. 389 of the Code of Criminal Procedure 1973 that when an action is taken under section 12 of the Act and the appropriate Government makes a temporary release order the period of such temporary release whether on bail or parole has to be excluded in computing the period of detention. Either the statute or the rules made thereunder should provide for this eventuality. In the premises it must accordingly be held that the period of parole has to be excluded in reckoning the period of detention under sub-section (1) of section 3 of the Act. The only contention advanced by Shri Jethmalani in course of the hearing namely that the period of parole from May 15 1986 to February 28 1987 could not be added to the maximum period of detention of the detenu Shital Kumar for one year as specified in the impugned order of detention passed under sub-s.(1) of s. 3 of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act 1974 must fail.

Issues Involved:
1. Legality of the detention order under COFEPOSA.
2. Computation of the detention period in light of the parole period.
3. Jurisdiction of the Court to grant parole in preventive detention cases.
4. Interpretation of Section 10 of the COFEPOSA Act regarding the maximum period of detention.

Issue-wise Detailed Analysis:

1. Legality of the Detention Order under COFEPOSA:
The petitioner filed a writ of habeas corpus under Article 32 of the Constitution for the release of her husband, detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The detenu was alleged to be involved in smuggling activities, specifically dealing in smuggled gold and remitting sale proceeds in foreign currency. The detention order was passed based on intelligence gathered by the Directorate of Enforcement and subsequent seizures and confessions.

2. Computation of the Detention Period in Light of the Parole Period:
The main contention was whether the period of parole (from May 15, 1986, to February 28, 1987) should be included in the one-year detention period specified under Section 3(1) of COFEPOSA. The petitioner argued that preventive detention is not punitive, and thus the parole period should not interrupt the detention period. The Court, however, held that the period of parole must be excluded from the computation of the detention period. The rationale was that detention under the Act implies actual custody, and parole interrupts this custody.

3. Jurisdiction of the Court to Grant Parole in Preventive Detention Cases:
The Court discussed the jurisdictional limits under Article 32 and Article 226 of the Constitution concerning granting parole. It was emphasized that the power to grant parole is an executive function and not a judicial one. The Court referred to various precedents, including State of Bihar v. Rambalak Singh and State of Uttar Pradesh v. Jairam, to conclude that releasing a detenu on parole is not within the Court's jurisdiction unless there is a statutory provision allowing it. The Court also noted that Section 12(6) of COFEPOSA explicitly prohibits the release of a detenu on bail or otherwise, except as provided in the section.

4. Interpretation of Section 10 of the COFEPOSA Act Regarding the Maximum Period of Detention:
Section 10 of COFEPOSA prescribes the maximum period of detention as one year from the date of detention. The Court interpreted the words "may be detained" to mean actual custody. It held that the period of parole does not count towards the one-year maximum detention period because parole interrupts actual custody. The Court rejected the petitioner's reliance on the case of Amritlal Channumal Jain, stating that the direction in that case could be interpreted differently and reaffirmed the view that the parole period should be excluded.

Conclusion:
The Court dismissed the writ petition, holding that the period of parole should be excluded in computing the maximum period of detention under Section 10 of COFEPOSA. The petitioner was directed to surrender to custody to undergo the remaining period of detention, failing which a non-bailable warrant would be issued. The judgment underscored the distinction between preventive detention and punitive imprisonment and clarified the jurisdictional boundaries concerning parole in preventive detention cases.

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