# SUNIL FULCHAND SHAH v. UNION OF INDIA AND ORS

- **Citation:** [2000] 1 S.C.R. 945
- **Court:** Supreme Court of India
- **Decided:** 2000-02-16
- **Bench:** Dr. A.S. Anand, G.T. Nanavati, K.T. Thomas, D.P. Wadhwa Ands. Rajendra Babu
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sunil-fulchand-shah-v-union-of-india-and-ors-17182
- **Pages:** 36

## Headnote

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 : Sections 10 and 12
Preventive detention-Period of detention--Computation of-Has to be
computed from the date of actual detention and not from the date of
Detention Order.
A
B
c
Preventive detention-Grant of parole-Effect of-Held, parole does
not intenupt the period of detention-That period should be counted towards D
the period of detention-Period of detention does not stand automatically
extended by any period of parole unless the order of parole or Rules or
instTUctions specifically provided for extention of detention.
Preventive detentioll-Detention order-Setting aside of by High Court E
directing release of detenu-011 appeal Supreme Court reversing e"oneous
decision of High Court and directing detention of detenu-Effect 011 remaining
period of detention.
Preventive detention-Parole during-Can be granted as per rules or
administrative instTUctions-Detenu should approach the Govemment--ln
F
case of unjustifiable refusal by government High Court under Article 226 and
Supreme Court under Articles 32, 136 and 142 can direct temporary release.
Parole and Bail-Distinction betweell-Discussed.
In these petitions the questions for consideration are :
(i) 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?
945
G
H
A
946
SUPREME COURT REPORTS
[2000) 1 S.C.R.
(ii) 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 Supreme Court to direct the arrest and detention
of the detenu, to undergo detention for the period which fell short or the
B original period of detention intended in the detention order on account of
the erroneous High Court order?
c
Disposing the petitions, the Court
HELD : PER CURIAilJ
Parole does not interrupt the period of detention and, thus, that
period needs to be counted towards the total period of detention unless
the terms for grant of parole, Rules or instructions, prescribe otherwise.
PER MAJORITY (CJ., KT. Thomas, D.P. Wadhwa and S. Rajendra
D Babu, JJ.)
The quashing of an order of detention by the High Court brings to
an end such an order and if an appeal is allowed against the order of the
High Court, the question whether or not the detenu should be made to
surrender to undergo the remaining period of detention, would depend
E upon a variety offactors and in particular un the question of lapse of time
between the date of detention, the order of the High Court, and the order
of this Court, setting aside the order of the High Court.
F
PER MINORITY (G.T. NANAVATI, J.)
If the period of detention is interrupted by order of court and on
appeal that erroneous order is set aside the period during which the
detenu was released pursuant to the order of court can be excluded while
computing the maximum period of detention.
G
Per Dr. Anand, CJ. (for himself and for KT. Thomas, D.P. Wadhwa
and S. Rajendra Babu, ff.) :
1. On a plain reading of section 10 of the Conservation of l<'oreign
Exchange and Prevention of Smuggling Activities Act, 1974 it is evident
that the period of detention is to be computed from the date of actual
H detention and not from the date of the order of detention.
S.I'. SI-Wf v. t: .O.I.
947
2. Section 10 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. The period
of one or two years, as the case may be, as mentioned in Section 10 will
run from the date of the actual detention and not from the date of the
order of detention. Any other interpreta

## Text

_Characters 0–39,987 of 86,350. This is a partial read: ask again with offset=39987 for what follows._

SUNIL FULCHAND SHAH
v.
UNION OF INDIA AND ORS.
FEBRUARY 16, 2000
[DR. A.S. ANAND, CJ., G.T. NANAVATI, K.T. THOMAS,
D.P. WADHWA ANDS. RAJENDRA BABU, JJ.j
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 : Sections 10 and 12
Preventive detention-Period of detention--Computation of-Has to be
computed from the date of actual detention and not from the date of
Detention Order.
A
B
c
Preventive detention-Grant of parole-Effect of-Held, parole does
not intenupt the period of detention-That period should be counted towards D
the period of detention-Period of detention does not stand automatically
extended by any period of parole unless the order of parole or Rules or
instTUctions specifically provided for extention of detention.
Preventive detentioll-Detention order-Setting aside of by High Court E
directing release of detenu-011 appeal Supreme Court reversing e"oneous
decision of High Court and directing detention of detenu-Effect 011 remaining
period of detention.
Preventive detention-Parole during-Can be granted as per rules or
administrative instTUctions-Detenu should approach the Govemment--ln
F
case of unjustifiable refusal by government High Court under Article 226 and
Supreme Court under Articles 32, 136 and 142 can direct temporary release.
Parole and Bail-Distinction betweell-Discussed.
In these petitions the questions for consideration are :
(i) 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?
945
G
H
A
946
SUPREME COURT REPORTS
[2000) 1 S.C.R.
(ii) 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 Supreme Court to direct the arrest and detention
of the detenu, to undergo detention for the period which fell short or the
B original period of detention intended in the detention order on account of
the erroneous High Court order?
c
Disposing the petitions, the Court
HELD : PER CURIAilJ
Parole does not interrupt the period of detention and, thus, that
period needs to be counted towards the total period of detention unless
the terms for grant of parole, Rules or instructions, prescribe otherwise.
PER MAJORITY (CJ., KT. Thomas, D.P. Wadhwa and S. Rajendra
D Babu, JJ.)
The quashing of an order of detention by the High Court brings to
an end such an order and if an appeal is allowed against the order of the
High Court, the question whether or not the detenu should be made to
surrender to undergo the remaining period of detention, would depend
E upon a variety offactors and in particular un the question of lapse of time
between the date of detention, the order of the High Court, and the order
of this Court, setting aside the order of the High Court.
F
PER MINORITY (G.T. NANAVATI, J.)
If the period of detention is interrupted by order of court and on
appeal that erroneous order is set aside the period during which the
detenu was released pursuant to the order of court can be excluded while
computing the maximum period of detention.
G
Per Dr. Anand, CJ. (for himself and for KT. Thomas, D.P. Wadhwa
and S. Rajendra Babu, ff.) :
1. On a plain reading of section 10 of the Conservation of l<'oreign
Exchange and Prevention of Smuggling Activities Act, 1974 it is evident
that the period of detention is to be computed from the date of actual
H detention and not from the date of the order of detention.
S.I'. SI-Wf v. t: .O.I.
947
2. Section 10 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. The period
of one or two years, as the case may be, as mentioned in Section 10 will
run from the date of the actual detention and not from the date of the
order of detention. Any other interpretation would frustrate the object of
an order of detention and a clever person may abscond for the entire
period mentioned in the order of detention and thereby render the order
of detention useless claiming on being apprehended that 'the period has
already expired'. [958-B-C]
State of Gujarat v. Adam Kasam Bhaya, [1982] 1 SCR 740 and State
of Gujarat v. lsmail Juma & Ors., [1982] 1 SCR 1014, affirmed.
A
B
c
3. Personal liberty is one of the most cherished freedoms, perhaps
more important than all other freedoms guaranteed under the ConstituD
tion. It was for this reason that the Founding Fathers enacted the
safeguards in Article 22 in the Constitution so as to limit the power of the
State to detain a person without trial, which may otherwise pass the test
of Article 21, by humanising the harsh authority over individual liberty.
Since, preventive detention is a form of precautionary State action, in·
tended to prevent a person from indulging in a conduct, injurious to the E
society or the security of State or public order, it has been recogni~ed 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 restrictions placed on a person to preventively detain
must, consistently with the effectiveness of detention, be minimal. In a
F
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. Supreme 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 G
public order, then the liberty of the individual must give way to the larger
interest of the nation. [958-•'-H; 959-A-B]
4. The Constitution itself permits the Parliament and the State Legis·
lature to make law providing for detention, without trial, upto a period of H
948
SUPREME COCRT REPORTS
[2000) 1 S.C.R.
A three months without any safeguards but where the law seeks to provide for
detention for a longer period than three months, it must comply with the
constitutional safeguards which are found in sub-clauses (a) and (b) of
Clause (4), though leaving it to the discretion of the detaining authority to
decide what should be the maximum period of detention. Outside limit to
the period of detention has, however, been laid down by the proviso which
B says that nothing in sub-clause (a) of Clause (4) shall authorise the detention of any person beyond the maximum period prescribed by any law made
by Parliament under 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
C operate, is no longer res-integra. [960-C-F]
Fagu Shaw Etc. Etc. v. The State of West Bengal, [1974] 2 SCR 832,
reiterated.
5. Parole does not interrupt the period of detention and, thus, that
D period needs to be counted towards the total period of detention unless
the terms for grant of parole, rules or instructions, prescribe otherwise.
6. Bail and parole have different connotations in law. Bail is well
understood in criminal jurisprudence and Chapter XXXIII of the Code of
E Criminal Procedure contains elaborate provisions relating to grant of bail.
Bail is granted to a per~on 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
retainconstructive control over him through the sureties. In case the
accused is released on his own bond such constructive control could still
F be exercised through the conditions of the bond secured from him. The
literal meaning of the word 'bail' is surety. [960-G-H]
State of Haryana v. Mohinder Singh, JT (2000) 1 SC 629, relied on.
7. 'Parole', however, has a different connotation than bail even
G though the substantial legal effect of both bail and parole may be the
release of a person from detention or custody. 'Parole' is a form of
"temporary release• from custody, which does not suspend the sentence or
the period of detention, but provides conditional release from custody and
changes the mode of undergoing the sentence. In this country, there are
H no statutory provisions dealing with the question of grant of paroie. The
\
S.E SHAH v. U.O.I.
949
Code of Criminal Procedure does not contain any provision for grant of A
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. [962-G; El
Rainone v. Murphy, 135 N.E. 2 d 567, 571 1 N.Y. 2 d 367 153 ~.Y.S.
end 21, 26; Wooden v. Goheen Ky., 255 S.W. 2 d 1000, 10112 and Jenkins v.
Madigan, C.A. Ind., 211 F .2 d 904, 906, cited.
Halsbury's Laws of England, 4th Ed., Vol.11, para 166; The Concise
Oxford Dictionary-New Edition; Black's Law Dictionwy-Slxth Edition; P.
Ramanatha Aiyar's, The Law Lexicon with legal Maxims, Latin Tenns and
Wordr & Phrases p.1410 and Wordr and Phrases, (Permanent Edition) :
Vol.31, pp. 164, 166, 167, West Publishing Co., referred to.
8. Parole, stricto-senso may be granted by way of a temporary release
B
c
as contemplated by Section 12(1) or 12(1A) of COFEPOSA by the Govern·
mentor its functionaries, in accordance with the Parole Rules oradministra· D
tive 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, thenfore, to
approach th:e 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. [963-F]
9. Section 12(6) of the COFEPOSA starts with a non-obstante clause
E
and mandates that no person against whom a detention order made under
COFEPOSA is in force shall be released 'whether on bail or bail bond or
otherwise'. The expression 'or otherwise' would include release of the
p
detenu even on parole through judicial intervention. The prohibition is
significant and has a purpose to serve. Since the object of preventive
detention is to keep a person out of mischief in the interest of the security
of the State or public order, judicial intervention to release the detenu
during the period an order of detention is in force has to be minimal.
Vndi:r Section 12(1) or 12(1A), it is for the State to see whether the detenu G
should be released temporarily or not, keeping in view the larger interest
of the State and the requirements of detention of an individual. Terms and
conditions which may be imposed while granting order of temporary
relt:ase are also indicated in the other granting clauses of Section 12 for
the guidance of the State. (963-C-D]
H
950
SUPRf.ME COURT REPORTS
[2000] 1 S.C.R.
A
10. The Courts cannot, generally speaking, e.'<ercise 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. However, the
bar of judicial intervention to direct temporary release of a detenu would
not affect the jurisdiction of the High Courts under Article 226 of the
B Constitution or uf this Court under Articles 32, 136 or 142 of the Constitu·
tion to direct the temporary release of the detenu, where request of the
detenu to be released on parole for a specified reason and/or for a specified
period, has been, in the opinion of the Court, unjustifiably refused or where
in the interest of justice such an order of temporary release is required to
C be made. That jurisdiction, however, has to be sparingly exercised by the
Court and even when it is exercised, it is appropriate that the court leaves
it to the administrative or jail authorities to prescribe the conditions and
terms on which parole is to be availed of by the detenu. (963-H; 964-A-C]
11. Release on parole is only a temporary arrangement by which a
D detenu is released for a temporary fixed period to meet certain situations.
12. An ordt:r made under Section 12 of temporary release of a detenu
on parole does not bring the detention to an end for any period • it does
not interrupt the period of detention • it only changes the mode of deten·
tion by restraining the movement of the detenu in accordance with the
E conditions prescribed in the order of parole. The detenu is not a free man
while out on parole. Even while on parole he continues to serve the
sentence or undergo the period of detention in a manner different than
from being in custody. He b not a free person. Parole does aot !teep the
period of detention in a ~tate of suspiended animation. The period of
F detention keeps ticltlng during this period of temporary release of a
detenu also because a parolee remains in legal custody of the State and
under the control of its agents, subject at any time, for breach of co11di·
tion, to be returned to custody. The period of detention would not stand
automatically extended by any period of parole granted to the detenu
G 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. [964-F ·G; 965-C]
13. The quashing of an order of detention by the High Court brings
H to an end such an order and if an appeal is allowed against the order of
• '
•
S.F. SHAH v. U.O.I.
951
the High Court, the question whether or not the detenu should be made to A
surrender to undergo the remaining period of detention, would depend
up@n a variety of factors and in particular on the question of lapse of time
between the date of detention, the order of the High Court, and the order
of this Court, setting aside the order of the High Court. [967-E]
A detenu need not be sent back to undergo the remaining period of B
detention, after a long lapse of time, when even the maximum prescribed
period intended in the order of detention has expired, unless there still
exists a proximate temporal nexus between the period of detention
prescribed when the detenu was required to be detained and the date when
the detenu is required to be detained pursuant to the appellate order and C
the State is able to satisfy the court about the desirability of 'further' or
'continued' detention. (967-G]
Where however long time has not lapsed or the period of detention
initially fixed in the order of detention has also not expired, the detenu
may be sent back to undergo the balance period of detention. It is open to D
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
ofan 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 E
order may not be given as 'set oil' against the total period of detention.
The actual period ol' incarceration cannot, however, be permitted to exceed
the maximum period of detention, as fixed in the order, as per the prescription of the statute. (967-H; 968-A-B]
14. In the instant case long period has lapsed since the detenus in
F
each of these cases were released and no material has been placed before
this Court by the detaining authority to warrant further detention of the
detenu at this distant point of time. Therefore, the detenus need not be
directed to undergo 'the remaining period of detention' because the nexus
between detention and object of detention would appear to have been G
snapped during this period of about ten years, during which period
detenus were free.
Smt. Poonam Lata v. M.L. Wadhwan & Ors., AIR (1987) SC 1383;
Pushpadevi M. Jatia v. M.L. Wadltawan, AIR (1987) SC 1748 and Harish
Makhija v. State of U.P., [1987] 3 SCC 432, overruled.
H
952
SUPREME COURT REPORTS
[2000] 1 S.C.R.
A
PER NANAVATI, J. (Partly dissenting)
1. It is true that Article 22(7)(b) has been held permissive and,
therefore, there can be a preventive detentfon legislation which does not
provide for the maximum period of detention and a person can be detained
B thereunder for a period longer than one or two years. That, however,
cannot justify the view that the provision prescribing maximum period of
detention should be construed liberally. When the Parliament has chosen
to rix the maximum period, the question as to how the said period is to be
computed will have to be decided by considering the object of the legislation nnd the relevunt provision, the words used in that provision and
C without being influenced by the nat1re of power conferred by Article
22(7)(b). (976-F]
2. The distinction between preventive detention and punitive deten·
tion has now been well recognised. Preventive detention is qualitatively
D different from punitive detention/sentence. A person is preventively
detained without a trial but punitive detention is after a re1.'lllar trial and
when he is found guilty of having committed an offence. The basis of
preventive detention is suspicion and its justification 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
E found necessary when a person is sentenced to suffer imprisonment it is
intended that the person so sentenced shall remain in prison for the period
stated in the order imposing sentence. The term specified in the order of
sentence is intended to be actual period of imprisonment. On the other
hand, preventive detention being an action ofimmediate necessity has to be
F immediate and continuous if it is to be effective and the purpose of deten·
tion is to be achieved. The justification for preventive detention being
necessity, a person can be detained only so long as it is found necessary to
detain him. If his detention is found unnecessary, even during the maxi·
mum period permissible under the law then he has to be released from
detention forthwith. It is really in this context that S.10 and particularly the
G words 'may be detained' shall have to be interpreted. (977-A-E]
3. 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
H democracy governed by the rule of law only as a necessary evil. Though the
'\
•
\ ,
S.F. SHAH v. t;D.I.
953
object of such legislation is to protect the nation and the society against A
anti national and anti social activities, the nature of action permitted is
preventive and not punitive. [976·G·H]
4. The object of enacting the COFEPOSA Act is to provide for
preventive detention in certain cases for the purposes of conservation and
augmentation of foreign exchange and prevention of smuggling activities
and for matters connected therewith. The power to detain is to be exercised
on being satisfied with respect to any person that with a view to preventing
him from including in any prejudicial activity specified in S.3, it is neces·
B
sary to make an order for his detention. The satisfaction of the detaining
authority must be genuine. Once the detaining authority is satisfied C
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. [977-1<'-H; 978-BJ
S. Provisions contained in Sections 8(6), 9 and 12(6) of COFEPOSA D
clearly indicate the intention of the legislature that once detention starts
it must run continuously and that the power to release on bail or otherwise
has been taken away as it does not want the period of detention to be
curtailed in any manner. Therefore, there is no justification for taking the
view that the words 'may be detained' in S.10 contemplate actual detention E
for the maximum period. If the word 'detain' is interpreted to mean
actually detained for the maximum period, then it will partake the character of punitive detention and not preventive detention. [978-F]
6. The reason given by this Court in Poonam Lata"'* that 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 of his detention,
because Ile w.is not in actual custody then, does not appear to be sound.
A tempor,uy release under S.12, of the person detained does not change
F
his status as his freedom and liberty are not fully restored. Therefore, the
period of temporary release on parole cannot be excluded from the G
maximum period of detention. Though the purpose and object of S.10 is
to prescribe not only the maximum period of detention but also for the
method of computation of the period, the only inference that can be drawn
therefrom is that the period of detention has to be computed from the
date of actual detention and not from the date of the order of detention. H
954
SUPREME COURT REPORTS
(2000] 1 S.C.R.
A Since S.10 does not prescribe any other method, it is not proper to drnw
a further inference that the maximum period or detention is to be computed by excluding the period during which the detenu was released on
parole. (978-H; 979-A·CJ
B
7. The Act contemplates continuous period of detention. If in spite
or that any interruption is made in the running or that period then the
only effect it can have is to curtail the period of detention. Taldn3 the
contrary view that the detenu must serve out the balance period or deten·
tion 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
C end. (979-F]
8. In Adam Kasam Bhaya's¢ case the only question that had arisen
for consideration was whether the maximum period of detention starts
running from the date of the order of detention or the date of actual
D detention. How the maximum period is to be counted when it is interrupted
by a Courts' invalid order or by an order of parole was not the question
raised or decided in that case. The observation that "if he has served a
part or the period of detention he will have to serve out the balance" was
made in that context only and it cannot be taken as laying down that if the
E prescribed period of detention is thus interrupted then the detenu has to
serve out the balance period of detention. (976-A·B]
F
>::<State of Gujarat v.Adam Kasam Bhaya, [1981] 4 SCC 216, explained
and distinguished.
9. If the period of detention is interrupted either by an order of
provisional release made under S.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
G maximum period of detention. [979-H]
Amritlal Cha1111umal Jain Etc. v. State of Gujarat & Ors., WP Nos.
1342-43, 1345-48, 1567/82 and 162/83 decided by Supreme Court on
10.7.1985 and State of Gujarat v. Mohd. Ismail Jumma, (1981) 4 609,
H referred to.
S .. F. SHAH v. U.0.l. [AS. ANA..'<D, CJ.j
955
**Poonam Lata v. M.L. Wadhwan, (1987] 3 SCC 347; Pushpadevi M.
Jatia v. M.L. Wadhawan, (1987]3 SCC 367 and Ha1ish .l\1akhija v. State of
U.P., (1987] 3 SCC 432, overruled.
CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.) No.
248 of 1988 Etc.
(Under Article 32 of the Constitution of India.)
A
B
Soli J. Sorabjee, Attorney General, H.N. Salve, Solicitor General,
Kuldeep Singh, Additional Solicitor Gem:ral, U.R. Lalit, T.C. Mehta, M.G.
Karmali, Vineet Kumar, J,B. Patel, Mrs. H. Wahi, M.N. Shroff, A. Subba C
Rao, P. Parmeshwaran, C.V.S. Rao, K.M.M. Khan, Wasim A. Quadri, B.K.
Prasad, Ms. Sunita Hazarika, (Ms. S. Bagga, K.R. Nagaraja) (NP),
Tripurari Ray, Herjinder Singh, Ms. Priya Saxena, Pramit Saxena, S.V.
Deshpande, Ms. Kamini Jaiswal, Adhyaru Yashank P., Anip Sachthey, Ms.
Anu Sawhney, R.P. Wadhwani, (S.V. Deshpande) (NP), Rajiv Dutta, Ms. D
Meenakshi Kulshrestha and Kapil Sharma for the appearing parties.
The Judgments of the Court were delivered by
DR. A.S. ANA.l'\/D, CJ. I have had the advantage of going through the
judgment of our learned brother Nanavati, J. and I agree that these E
petitions should be allowed Long period has lapsed since the detenus in
each of these cases were reicased and no material has been placed before
us by the detaining authority to warrant further dett:ntion of the detenus
at this distant point of time. The dctt:nus, in my opinion need not be
directed to undergo 'the remaining period of detention'' because the nexus
F
between detention and object of detention would appear to have been
snapped during this period of about ten years, during which period dctcnus
were free. ln fairness to the learned Attorney General it must be stated
that he fairly conceded this position. I find myself unablt: to fully subscribe
to the view of brother Nanavati, J. relating to the treatment of the period
during which a detenu is free as a result of an erroneous order of the High G
Court which is set aside on appeal. r would also like to giw 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 reFert:nce made
by a 2-Judge Bench on 1st of May, 1989. That ordt:r reads thus :
H
956
A
B
c
D
E
SUPREME COURT REPORTS
[2000] 1 S.C.R.
'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 frxed 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 paro!t: 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 deci~ions of this Court have been placed before us
in support of the contention that the period of dttention intended
by the detention order is not a fixi;d period but can be correspondingly extt:nded if :he 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. lsmail Juma & Ors., (1982] 1 S.C.R.
1014, Smt. Poonam Lata v. M.L. Wadhawan and Others, A.LR.
(1987) SC 1383, and Pushpadevi M. Jatia v. M. L. Wadhawan, A.I.R.
(1987) SC 1748. We find some difficulty in accepting the view taken
F
by the learned Judges of this Court who decided those cases. It
seems to us prim a f acie 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
G
is preventive detention and not punitive detention. Prevention
detention invariably. runs from the date specified in the detention
order. In the cast 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 detenH
}
S.F. SHAH v. U.0.1. [AS. ANk.'fD, CJ.]
957
tion the detaining authority applies its subjective judgment to the A
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 engaging in mischief. It seems to us prim a f acie that one
possible view can be that if parole is granted that period of parole B
should be counted within the total period of detention and not
outside it. As regards the problem raised by the release of the
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)
C
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 right to
freedom from detention beyond the period intended by the statute. D
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 onler of reference, essentially the substantial quesF
tions 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 F
allows a habeas corpus petition and directs a detenu to be released and
in consequence the dctenu 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 G
detention order on account of the erroneous High Court order.
Brother Nanavati, J. has dealt with various judgments referred to in
the order of reference and analysed them. I agree that the judgments in
Harish Makhija v. State of U.P., (1987] 3 SCC 432, Poonam Lata (supra)
and Pushpadevi (supra) do not lay down the correct law because the H
958
SUPRfME COURT REPORTS
(2000] 1 S.C.R.
A propositions of law laid down in those judgments, which has been extracted
by brother Nanavati, J. have been very widely stated. I do not intend to
deal with those judgments and would like to address myself to the questions
as noticed above.
B
Section 10 of COFEPOSA prescribes not only the maximum period
of detention hut 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.
Tht: period of one or two years, as the case may be, as mentioned in Section
10 will run from the date or the actual dc;tt:ntion and not from the date of
C the order of ddention. Any other int..:rpretation would frustrate the object
of an order of ddention and a clever person may abscond for the entire
period mentioned in the order of detention and thereby render the order
of detention usdess claiming on be;.ng apprehended that the period has
already expired'. The view expressed inAdam Kasam Bhaya's (supra) case
D and Ismail Juma's (supra) case, in this behalf lays down the correct law
and I adopt that reasoning and hold that the period of detention specified
in the order of detention would commence not from the date of the order
but from the dak of actual detention. That period is the maximum period
of detention. Would that period get automatically extended by any period
E of parole granted to the detenu is the next question? I shall deal with the
other observation in Adam Kasam Bhaya's (supra) case viz. ''if he has
served a part of the perivd of dckntiun, he will have to strve out the
balance" separatdy, in tht: later part of this order.
F
Personal liberty is one of the most cherished freedoms, perhaps more
important than the other freedoms guaranteed under the Constitution. It
was for this reason that the Founding Fathers enactt:d the safeguards in
Article 22 in thi; Constitution so as to limit the power of the State to detain
a person without trial, which may otherwise pass the test of Article 21, by
humanising the harsh authority over individual liberty. Since, preventive
G 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
maintenanct: ol public order. However, the power being drastic, the restricH tions placed on a person to preventively detain must, consistently with the
_ j
S.F. SHAH v. lJ.O.I. [AS. ANAND, CJ.]
959
effectiveness of detention, be minimal. In a democracy governed by the A
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 bt:: relevant at this stage to notice the provisions of Article
22(4)(a) and (7) of the Constitution.
Article 22( 4)(a) of the Constitution provides as follows :
B
c
"22 ( 4)( a) - an Advisory Board consisting of persons who are, or
have been, or are qualified to be appointed as, judges of a High
Court has reported before the expiration of the said period of three
months that there is in its opinion sufficient cause for such detenD
tion:
Provided that nothing in this sub-clause shall authorise the
detention of any person beyond the maximum period prescribed
by any law made by Parliament under sub-clause (b) of clause (7)."
Clause (7) of Article 22 says :
"Clause (7) - Parliament may by law prescribe -
(a) the circumstances under which, and the class or classes of
cases in which, a person may be detained for a period longer
than three months under any law providing for preventive
detention. without obtaining the opinion of an Advisory Board
(b)
in accordance with the provisions of sub-clause (a) of clause
(4);
the maximum period for which any person may in any class
or classes of cases be detained under any law providing for
preventive detention; and
(c) the procedure to be followed by an Advisory Board in an
E
F
G
inquiry under sub-clause (a) of clause (4)."
H ·
960
SUPREME COURT REPORTS
[2COOl I S.C.R.
A
A combined reading of Clauses ( 4) and (7) makes it clear that if a
law made by P dr!iament or the Statt: Legislature authorises the detention
of a person for a period not exceeding three months, it does not have to
satisfy any other constitutional requirement except that it must be within
the !t:gislative competence of the Parliament or the State Legislature, as
B the case may he. (Article 246, Entry 9, List l and Entry 3, List-Ill of
Seventh Schedule). The Constitution itself permits the parliament and the
State Legislature to make :aw providing for detention, without trial upto
a period of thr..:e months without any safeguards but where the law seeks
to provide for dt:kntion for a longer pt:riod than three months, it must
comply with th..: constitutional safoguards which are found in sub-clauses
C (a) and (b) of ( '.ause ( 4), though leaving it to the discretion of the detaining
authority to dtcide what should be the maximum period of detention.
Outside limit to the period of detention has, however, been laid down by
the proviso which says that nothing in sub-clause (a) of Clause (4) shall
authorise the detention of any per,on beyond the maximum period
D prescribed by any law made by Parliament under Cause (7). The question
whether Parliamt!nt is itself bound to prt:scribe the maximum period of
detention undt:r Article 22(7)(b) of the Constitution in order that the
proviso to Article 22(4)(e) might operatt!, is no longer res-integra. The issue
was considered by a Cor.stitution Bench of this Court in Fagu Shaw, Etc.
Etc. v. The State of Wes/ Bengal, [1974) 2 S.C.R. 832, and authoritatively
E answered. Since, I respectfully agree with the answer, I need not detain
myself to deal with that issue any further.
To answer tht: question whether the pt:riod of detention would stand
automatically extended by any period of parok granted to a dt:tenu, we
F need to examine the concept and affoct of parole more particularly in a
preventive: detrntion case.
Bail and parole havt: diffen::nt 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.
G Bail is grantt:d to a person who has bt:t:n arrested in a non-bailable offence
or has been convicted of an offonce after trial. The effect of granting bail
is to release the accust:d from internment though tht: court would still
retain constructive control over him through the sureties. In case the
accused is relt:ased on his own bond rnch constructive control could still
H be exercised through the conditions of the bond secured from him. The
S.F. SHAH v. U.O.I. [AS. A.'lAND, CJ.]
961
litt:ral meaning of the word 'Bail' is surety. In Halsbury's Law of England A
4th Ed., vol 11, para 166, the following observation succinctly brings out
the effect of bail:
"The cffoct of granting bail is not to set the defendant (accused)
at liberty but to release him from the custody of law and to entrust
him to the custody of his sureties who arc bound to produce him B
to appear at his trial at a specified time and place. The sureties
may seize their principal at any time and may discharge themselves
by handing him over to the custody of law and he will then be
imprisoned."
'Parole', however, has a different connotation than bail even though C
the substantial legal effect of both bail and parole may be the release of a
person from detention or custody. The dictionary meaning of 'Parole' is :
THE CONCISE OXFORD DICTIONARY - NEW EDITION
'The release of a prisoner temporarily for a special purpose or D
completely before the ~xpiry of a sentence, on the promise of good
behaviour; such a promise, a word of honour."
BLACK'S LAW DICTIONARY - SIXTH EDITION
''Rdea'e from Jail, prison or other confinement after actually
serving part of sentence; conditional release from imprisonment
which entitles parolee to serve remainder of his term oubide
confines of an institution, if he satisfactorily complies with all terms
and conditions provided in parole order.''
According to The Law Lexicon P. Ramanatha Aiyar's The Law Lexicon with
Legal Maxims, Latin Tenns and Words & Phrases; p. 1410., 'parole' has been
defined as:
"A parole is a form of conditional pardon, by which the convict
E
F
is rdeased before the expiration of his term, to remain subject, G
during the remainder thereof, to supervision by the public authority
and to return to imprisonment on violation of the condition of the
parole.'
According to Words and Phrases (Pem1anent Edition) vol. 31; pp. 164,
166, 167; West Publishing Co.