9911796707
TMI Blog2000 (2) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to the treatment of the period during which a detenu is free as a result of an erroneous order of the High Court which is set aside on appeal. I would also like to give 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 reference made by a 2-Judge Bench on 1st of May, 1989. That order reads thus : "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 Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. One of the substantial points which arises in these cases 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 automatically extended by any period or parole 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 free, and thereafter an appeal filed in this Court results in the setting aside of the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the need for effective measures of preventive detention and on the other the liberty of the subject and his right to freedom from detention beyond the period intended by the statute. 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 order of reference, essentially the substantial questions 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 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 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 detention order on account of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dividual liberty. Since, preventive 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 maintenance of public order. However, the power being drastic, the restric-tions placed on a person to preventively detain must, consistently with the effectiveness of detention, be minimal. 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. 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 individual must give way to the larger interest of the nation. It would be relevant at this stage to notice the provisions of Article 22(4) (a) and (7) of the Constitution. Article 22(4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 operate, is no longer res-Integra. The issue was considered by a Constitution Bench of this Court in Fagu Shaw, Etc. Etc. v. The State of West Bengal, [1974] 2 S.C.R. 832, and authoritatively answered. Since, I respectfully agree with the answer, I need not detain myself to deal with that issue any further. To answer the question whether the period of detention would stand automatically extended by any period of parole granted to a detenu, we need to examine the concept and affect of parole more particularly in a preventive detention case. Bail and parole have different 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. Bail is granted to a person 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 retain con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is merely a conditional suspension of sentence. Wooden v. Goheen, Ky., 255 S.W. 2d 1000, 1002." "A 'parole' is not a 'suspension of sentence', but is a substitu-tion, during continuance of parole, of lower grade of punishment by confinement in legal 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, CA. Ind., 211 F. 2d 904, 906. "A 'parole' does not suspend or curtail the sentence originally imposed by the court as contrasted with a 'commutation of sentence' 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 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 between grant of bail and parole has been clearly brought out in the judgment of this Court in State of Haryana v. Mohinder Singh JT (2000) 1 SC 629, to which one of us (Wadhwa, J.) was a party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in accordance with the Parole Rules or administrative 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, 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 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 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 Constitution or of this Court under Articles 32, 136 or 142 of the Constitution to direct the temporary release of the detenu, where request of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not prescribe it as a condition that the period during which the detenu is out of custody, should be excluded from the total period of detention, it should be 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 while 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 extended by any period of parole granted to the detenu 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. Coming now to the next question and the other observations made in Adam Kasam Bhaya's (supra) case, viz., "if he has served a part of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umanising 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 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 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 from the date of actual detention and not from the date of the order of detention; 3. That 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 Government or its functionaries, in accordance with the Parole Rules or administrative instructions, framed by the Government which are administrative in character. For securing release on parole, a detenu has, therefore, to approach the Government concerned or the jail authorities, who may impose conditions as envis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout the desirability of 'further' or 'continued' detention; 7. That where, however, long time has not lapsed or the 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 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 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. The above is not a summary of the judgment but shall have to be read along with the judgment. Consequently, the writ petitions are allowed and the special leave petition is disposed of in terms of the above order. G.T. NANAVATI, J. A short but a question of law of general importance that aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be correspondingly extended if the detenu absconds before he can be apprehended and detained or the period of detention is interrupted by erroneous judgment of the High Court and the detenu is set free or the detenu is released on parole. They found some difficulty in accepting that view as correct. They further observed : "it seems to us prima facie that one possible view can be that if parole is granted the period of parole should be counted within the total period of detention and not outside it". The third learned Judge (L.M. Sharma, J.) agreed with the views expressed in Adam Kasam Bhaya's case and the other three cases referred to above; yet, he also agreed that in view of the great public importance of the point involved these cases deserve to be heard by a Bench of five Hon'ble 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 are placed for hearing before a five Judge Bench of this Court. Section 3 of the COFEPOSA Act confers power on the Central Government, State Government and their officers if specially em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on cannot exceed one year or two years, as the case may be. Section 12 which confers power on the Government to release temporarily a person detained does not specifically provide as to how that period is to be counted while computing the maximum period of detention. The question as to the date from which the period of detention has to be counted was raised for the first time before this Court in Adam Kasam Bhaya's case. In that case the detenu was detained under COFEPOSA pursuant to order of detention dated May 7, 1979. The High Court of Gujarat quashed the order of detention. The State preferred an appeal to this Court and when it came up for hearing on September 15, 1981, a preliminary objection was raised on behalf of the detenu that, as the maximum period of detention permitted under Section 10 had expired, the appeal had become infructuous. Dealing with that objection this Court held as under : "In our opinion, the submission has no force. In Section 10, both in the first and the second part of the section, 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 detention, and not from the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... word 'detain' should not receive its plain and natural meaning. According to the Shorter Oxford English Dictionary, Vol. 1, p.531, the word 'detain' means "to keep in confinement or custody". Webster's Comprehensive Dictionary, International Edition at p.349 gives the meaning as "to hold in custody". The purpose and object of Section 10 is to prescribe a maximum period for which a person against whom a detention order under the Act is made may be held in actual custody pursuant to the said order. It would not be violated if a person against whom an order of detention is passed is held in actual custody in jail for the period prescribed by the section. The period during which the detenu is on parole cannot be said to be a period during which he has been held in custody pursuant to the order c>f his detention, for in such a case he was not in actual custody. The order of detention prescribes the place where the detenu is to be detained. Parole brings him out of confinement from that place. Whatever may be the terms and conditions imposed for grant of parole, detention as contemplated by the Act is interrupted when release on parole is obtained. The position would be well met by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " As regards the status of the detenu who is released on parole this Court observed as under : "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 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, travelling within prescribed limits alone and not going beyond etc. will not prevent the detenu from moving and acting as a free agent during the rest of the time or within the circumscribed limits of travel and having full scope and opportunity to meet people of his choice and have dealings with them, to correspond with one and all and to have easy and effective communication with whomsoever he likes through telephone, telex etc. Due to the spectacular achievements in modern communication system, a detenu, contacts with all his relations, friends and confederates in any part of the country or even any part of the world and thereby pursue his un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as under "We find it difficult from the observations made by a three Judge .Bench in Amritlal Channumal Jain's case to infer a direction by this Court that a period of parole 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 Makhija's case (supra) unequivocally laid down that the period of parole cannot be counted towards the period of detention. This accords with the view taken by this Court in a Bench of two Judges in State of Gujarat v. Adam Kasam Bhaya, [1981] 4 SCC 216 and State of Gujarat v. Ismail Junta, [1981] 4 SCC 609. In view of these authorities which appear to be in consonance with the object and purpose of the Act and the statutory provisions and also having regard to the fact that the direction made in Amritlal Channumal Jain's case is capable of another construction as well, do not find Shri Jethmalani's contention on this score as acceptable." With respect to the orders we may observe that no reasons were given in support of the view taken in those cases. Therefore, it is not necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being influenced by the nature of power conferred by Article 22(7)(b). 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 democracy governed by the rule of law only as a necessary evil. Though the object of such legislation is to protect the nation and the society against anti national and anti social activities, the nature of action permitted is preventive and not punitive. The distinction between preven-live detention and punitive detention has now been well recognized. 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 justified only so long as it is found necessary. When a person is sentenced to suffer imprisonment it is inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also long and unexplained delay in execution of the order has been held to lead to an inference that satisfaction was not 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 effective then it has to be continuous. Section 8(b) requires the appropriate Government to make a reference to the Advisory Board within five weeks from the date of detention of the person under a detention order, in cases where Section 9 does not apply. Considering the object of this provision it can be said that the period of five weeks will have to be counted from the date of detention and it cannot get enlarged or extended because the detenu is provisionally released either by the Court or by the Government during that period. Once an order of detention is made and the person is detained pursuant thereto, then suspension is not contemplated and it can only be revoked or modified. That the detention can be effective only if it is not interrupted is indicated by Section 12(6) which provides that notwithstanding anything contained in any other law, no person against whom a detention order is in force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Attorney General that the detenu cannot be permitted to take advantage of an order of 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 permitting the detenu to take advantage of an order of parole or a wrong judgment or order of the Court. For the reasons already stated above, even this contention cannot be accepted. The Act contemplates continuous period of detention. If in spite of that any interruption is made in the running of that period then the only effect it can have is to curtail the period of detention. Taking the contrary view that the detenu must serve out the balance period of detention would render the detention punitive after the period 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 lay down the correct law on the point. I further hold that if the period of detention is interrupted either by an order o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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