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PETITIONER:

SUNIL FULCHAND SHAH

Vs.

RESPONDENT:

UNION OF INDIA & OTHERS

DATE OF JUDGMENT01/05/1989

BENCH:

PATHAK, R.S. (CJ)

BENCH:

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.

HEADNOTE:

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 correspond-

ingly 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 deten-

tion 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 errone-

ous 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 preven-

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tive 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.

JUDGMENT:

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 pre-

ventive 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 automatical-

ly 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 sup-

port 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.

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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 Pushpa-

devi 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 detain-

ing authority is required to apply its mind and decide

whether, and if so for how long., a person should be de-

tained. It is preventive detention and not putative deten-

tion. 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 deten-

tion 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 Admin-

istration 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.

871