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TMI Blog1987 (4) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... ver a period of time before making of the impugned order of detention which revealed that the detenu was engaged in receiving smuggled gold from across the Indo-Nepal Border and was making payments in foreign currency and remitting the sale proceeds of such smuggled gold out of the country in the shape of U.S. dollars with the help of carriers. On February 26. 1986, the Directorate received information that the three carriers, namely, Ram Deo Thakur, Shyam Thakur and Bhushan Thakur would be leaving under the assumed names of Dalip, Mukesh and Rajesh respectively by 154 Dn. Jayanti Janata Express leaving New Delhi Railway Station at 6.45 p.m. Accordingly, the officers of the Delhi Zone of the Directorate mounted surveillance at Platform No. 5 of the Railway Station from which the train was to steam off. The said carriers were detrained and upon search of their baggage, the officers recovered $ 29,750 and Rs.1500 from Ram Deo Thakur @ Dalip, $ 28,900 and Rs.650 from Shyam Thakur @ Mukesh and $ 20,000 and Rs.1,000 from Bhushan Thakur @ Rajesh. The same ware seized under section 110(1) of the Customs Act, 1962. The total value of the seized foreign currency was equivalent to Rs.10,25,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is released on parole until further orders on the condition that he will report to the Directorate of Revenue Intelligence, New Delhi every day and the Directorate will be at liberty to ask him to explain his conduct during this time. Reply affidavit may be filed within two weeks. The matter will be listed two weeks after reopening of the Court after summer vacation. In the meantime, the respondents will be at liberty to make an application for the revocation of the parole if any misconduct or any other activity comes to their notice which requires the revocation of the parole." Notwithstanding the order of the learned Vacation Judge that the matter should be listed within two weeks after the re-opening of the Court after the long vacation--it should have been sometime in early August of 1986--the case was not listed till January 14, 1987. The respondents also took no steps to apply for early listing of the matter. On January 14, 1987, a prayer was made by the learned counsel appearing for the Union of India seeking two weeks' time to file an additional affidavit and the case was ordered to be listed on March 3. 1987. During all these months, the detenu has been out of jail. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... freedom of movement to the detenu. Conditions imposed on the detenu during parole impinge upon his freedom and liberty; therefore, the period during which a detenu is released on parole cannot be taken as a period during which the detention is not operative. Shri Jethmalani placed reliance on the ratio of the Privy Council decision in Lala Jairam Das & Ors. v. Emperor, AIR 1945 PC 94 to contend that but for the special provision contained in sub-section (3) of s. 426 of the old Code of Criminal Procedure, 1898 (corresponding to s. 389(4) of the Code of 1973) the power of the Court to grant bail to a convicted person or accused would not include a power to exclude the period of bail from the term of the sentence. The same principle ought to apply in the case of release of a detenu on bail or parole and the Court therefore cannot on general principles add the period of bail or parole to the period of detention. In the absence of any provision regarding the grant of parole and the computation of the period thereof and in view of the special provisions contained regarding commencement and the computation of the period of detention of one year, the period of parole cannot be deducted w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a grant of partial liberty or lessening of restrictions to a convict prisoner, but release on parole does not change the status of the prisoner. Rules are flamed providing supervision by parole authorities of the convicts released on parole and in case of failure to perform the promise, the convict released on parole is directed to surrender to custody. (See: The Oxford Companion to Law, edited by Walker, 1980 edn., p. 931, Black's Law Dictionary, 5th edn., p. 1006, Jowitt's Dictionary of English Law, 2nd edn., Vol. 2, p. 1320, Kenny's Outlines of Criminal Law, 17th edn., p. 574-76, The English Sentencing System by Sir Rupert Cross at pp. 31-34, 87 et seq., American Jurisprudence, 2nd edn., Vol. 59, pp. 53-61, Corpus Juris Secundum, vol. 67, Probation and Parole, Legal and Social Dimensions by Louis P. Carney). It follows from these authorities that parole is the release of a very long term prisoner from a penal or correctional institution after he has served a part of his sentence under the continuous custody of the State and under conditions that permit his incarceration in the event of misbehavior. There is abundance of authority that High Courts in exercise of their jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reventive detention can be self-defeating or criminally counter-productive. Section 15 reads: 15. Temporary release of persons detained-We consider that it is fair that persons kept incarcerated and embittered without trial should be given some chance to reform themselves by reasonable recourse to the parole power under s. 15. Calculated risks, by release for short periods may, perhaps, be a social gain, the beneficent jurisdiction being wisely exercised." Alagiriswamy, J. speaking for the Court, observed in no uncertain terms: "We fail to see that these observations lay down any principle of law. Section 15 merely confers a power on the Government. The power and duty of this Court is to decide cases coming before it according to law. In so doing it may take various considerations into account. But to advise the Government as to how they should exercise their functions or powers conferred on them by statute is not one of this Court's functions. Where the Court is able to give effect to its view in the form of a valid and binding order that is a different matter. Furthermore, section 15 deals with release on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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?" According to its plain construction, the purpose and object of s. 10 is to prescribe 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, the detention would not continue when parole operates 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 periods 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 consideration in computing the maximum period of detention authorised by section 10 of the Act. It is pertinent to observe that the Court has no power to substitute the period of detention either by abridging or enlarging it. The only power that is available to the Court is to quash the order in case it is found to be illeg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. Section 12 authorises either the Central Government or the State Government to temporarily release the detenu on such terms and conditions as the appropriate Government considers necessary to impose. The scheme of section 12, unless release by the appropriate Government is taken to be one of parole, keeps away parole from the subject of preventive detention. At any rate, it is the appropriate Government and not the Court which deals with a case of temporary release of the detenu. Since the Act authorises the appropriate Government to make an order of temporary release, invariably the detenu seeking to have the benefit of temporary relief must go to the appropriate Government first. It may be that in a given case the Court may be required to consider the propriety of an adverse order by the Government in exercise of the jurisdiction under section 12 of the Act. On the principle that exercise' of administrative jurisdiction is open to judicial review by the superior court, the High Court under Article 226 or this Court under Article 32 may be called upon in a suitable case to examine the legality and propriety of the governmental action. There is no scope for entertaining an appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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