Sunil Fulchand
Shah Vs. Union of India & Ors [1989] INSC 153
(1 May 1989)
Pathak,
R.S. (Cj) Pathak, R.S. (Cj) Venkatachalliah, M.N. (J)
CITATION:
1989 AIR 1529 1989 SCR (2) 867 1989 SCC (3) 236 JT 1989 (2) 394 1989 SCALE
(1)1178
ACT:
Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act, 1974: Section
3--Preventive detention--Period of detention--Whether fixed--Whether
automatically/correspondingly extended by period of parole or by release of detenu
by erroneous decisions of High Court--Matter referred to a Bench of Five
Judges.
HEAD NOTE:
The
petitioner filed a writ petition and a special leave petition challenging the
detention order passed under the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974. It was contended on behalf of the
respondents that the period of detention intended by the detention order was
not a fixed one but could be correspondingly extended if the detenu absconded
before he could be apprehended and detained or the period of detention was
interrupted by an erroneous judgment of a High Court and the detenu was set
free.
Referring
the cases to a larger Bench, this Court,
HELD:
By the Court.' As the matter is of great public importance, these cases are
referred to a Bench of five Judges of this Court. [870C] Per Pathak, C J:
Preventive
detention invariably, runs from the date specified in the detention order, and
the period of detention is determined by the detaining authority, applying its
subjective judgment to material before it. [869G-H] In the case of grant of
parole, one possible view can be that the period of parole should be counted
within the total period of detention and not outside it. As regards the problem
raised by release of a detenu pursuant to an erroneous decision of the High
Court, and the subsequent reversal of the decision by the Supreme Court the
remedy probably lies in the enactment of legislation analogous to s. 5(1) and
s. 15(4) of the 868 Administration of Justice Act, 1960 in the United Kingdom.
[870A-B]
As the
question is of great public importance affecting, on-the one hand, the need for
affective 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, and since most cases of preventive detention are bound to be
affected, these cases are referred to a five Judge Bench for reconsideration of
the law on the point. [870B-C] State of Gujarat v. Adam Kasam Bhaya, [1982] 1 SCR 740; State of Gujarat v. Ismail Juma
& Ors., [1982] 1 SCR 1014; Smt. Poonam Lata v. M.L. Wadhawan and Others,
AIR 1987 SC 1383 and Pushpadevi M. Jatia v. M.L. Wadhavan, AIR 1987 SC 1748;
dissented from.
Per
Sharma, J (Concurring):
In
view of the great public importance involved, these cases may be heard by a
five Judge Bench. [870E] State of Gujarat v. Adam Kasam Bhaya, [1982] 1 SCR 740; State of Gujarat v. Ismail Juma & Ors., [1982] 1
SCR 1014; Smt. Poonam Lata v. M.L. Wadhawan and Others, AIR 1987 SC 1383 and Pushpadevi
M. Jatia v. M.L. Wadhavan, AIR 1987 SC 1748; affirmed.
ORIGINAL/CRIMINAL
APPELLATE JURISDICTION: Writ Petition (Criminal) No.248 of 1988.
(Under
Article 32 of the Constitution of India).
WITH Special
Leave Petition (Crl.) No. 1492 of 1988.
From
the Judgment and Order dated 29.4.88 of the Gujarat High Court in Special
Criminal Application No. 886 of 1986.
U.R. Lalit,
M.G. Karmali, J.B. Patel and K.M.M. Khan for the petitioner in W.P. Crl. No.
248/88 and S.L.P. (Crl.) No. 1492/88.
T.U.
Mehta, Mrs. Hemantika Wahi and M.N. Shroff for the State of Gujarat in W.P. Crl. No. 248/88 and S.L.P.
(Crl.) No. 1492/ 88.
869 Kuldip
Singh, Additional Solicitor General C.V.S. Rao and A. Subba Rao for the
Respondents in W.P. Crl. No. 248/88 and S.L.P. (Crl.) No. 1492/88.
The
following Orders of the Court were delivered:
PATHAK,
CJ. 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 of 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 order of the
High Court, is it open to this Court to direct the arrest and detention of the detenu
if meanwhile the original period of detention intended in the detention order
has expired? Four decisions of this Court have been placed before us in support
of the contention that the period of detention intended by the detention order
is not,a fixed period but can be correspondingly extended if the detenu
absconds before he can be apprehended and detained or the period of detention
is interrupted by an erroneous judgment of a High Court and the detenu is set
free. Those cases are State of Gujarat v.
Adam Kasam Bhaya, [1982] 1 S.C.R. 740; State of Gujarat v. Ismail Juma & Ors., [1982] 1 S.C.R. 1014; Smt. Poonam
Lata v. M.L. Wadhawan and others, A.I.R. 1987 SC 1383 and Pushpadevi M. Jatia
v. M.L. Wadhavan, A.I.R. 1987 SC 1748. We find some difficulty in accepting the
view taken by the learned Judges of this Court who decided those cases. It
seems to us prima facie that what is important is that we are concerned with
cases of preventive detention, cases where the detaining authority is required
to apply its mind and decide whether, and if so for how long., a person should
be detained. It is preventive detention and not putative detention. Preventive
detention invariably runs from the date specified in the detention order. In
the case of punitive detention, no date is ordinarily specified from which the
detention will commence, and all that is mentioned is the period of detention.
In case of preventive detention the detaining authority applies it subjective
judgment to the material before it and determines what should be the period for
which the detenu should be detained, that is to say, the period during which he
should be denied his liberty in order to prevent him from 870 engaging in
mischief. 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. As regards the problem raised by the release
of a detenu pursuant to an erroneous decision of the High Court, and the
subsequent reversal of that decision by this Court, the remedy probably lies in
the enactment of legislation analogous to s. 5(1) and s. 15(4) of the
Administration of Justice Act, 1960 in the United Kingdom. The question is an important one affecting as it does on
the one hand the need for effective measures of preventive detention and on the
other the liberty of the subject and his fight 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 reconsideration of the
law on the point.
ORDER
Although
I agree with the view expressed in-the State of Gujarat v. Adam Kasam Bhaya,
[1982] 1 S.C.R. 740 and the other cases mentioned in the order of the learned
Chief Justice, I agree that in view of the great public importance of the point
involved, these cases may be heard by a Bench of five Hon'ble Judges.
N.P.V.
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