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CASE NO.: Appeal (crl.)  756 of 2008

PETITIONER: Chandrakant Baddi

RESPONDENT: Addl. Dist. Magistrate & Police Commnr. & Ors

DATE OF JUDGMENT: 29/04/2008

BENCH: TARUN CHATTERJEE & HARJIT SINGH BEDI

JUDGMENT: JUDGMENT O R D E R

REPORTABLE

CRIMINAL APPEAL NO.756 of 2008 (arising out of SLP (Crl.) No. 2280 of 2007) WITH  CRL. A. NO.757 of  2008  @ SLP(Crl).) No.2282/2007

1.      Leave granted. 2.      The appellant herein was detained for a period of one  year under an order dated 9th December 2005 passed  under Section 3 (2) of the Karnataka Prevention of  Dangerous Activities of Bottleggers Drug Offenders,  Gamblers, Goondas, Immoral Traffic Offenders and  Slum Grabbers Act 1985.  This order was challenged in  the Karnataka High Court on 16th December 2005 by  way of a writ of habeas corpus.  By its order dated 1st  September 2006, the Division Bench relying on  Commissioner of Police & Anr. vs. Gurbux Anandram  Bhiryani   (1988) Supp. SCC 568 quashed the order of  detention and directed that the appellant be set at  liberty.  The State of Karnataka thereafter moved an  application for review of the order dated 1st September  2006 on the plea that the aforesaid judgment had been  over-ruled by a later judgment of this Court in T.Devki  vs. Govt of Tamil Nadu & Ors. (1990) 2 SCC 456.  The  Hon’ble Judges constituting the Bench observed that  they had "spent sleepless" nights on account of an error  committed by them in the light that the counsel had not  brought the subsequent judgment of the Supreme Court  to notice and that their judicial conscience had been  pricked for having passed an order relying on a  judgment which had been over-ruled.  The Bench thus  allowed the Review Petition on 30th March 2007 and re- called the order dated 1st September 2006.  The Bench  also noticed that the period of detention had since  expired on 8th December 2006 and accordingly  observed:

"In these circumstances, despite the  opposition of Sri Javali, learned counsel  and despite his contention that his client  cannot be sent back to jail, in the light of  a detention order having come to an end  in the case on hand, we are not prepared  to accept his submissions. A beneficiary

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of a defective order cannot be permitted  to have the benefit and that benefit has to  be recalled in the light of recalling benefit  order.  In these circumstances, we deem  it proper to direct the police to take him  to custody for the remaining period."

3.     It is against this order that the present appeals have  been filed.  While issuing notice on 30th April 2007 the  operation of the impugned order had been stayed.  In the  meanwhile, the learned counsel for the respondents has also  filed a reply and we have accordingly heard the matter on  merits.  The learned counsel for the appellant has pointed  out that as the detention order was deemed to have come to  an end on the expiry of one year i.e. 8th December 2006, it  would be inappropriate to send the appellant back into  custody and for this plea has placed reliance on Sunil  Fulchand Shah vs. Union of India & Ors. (2000) 3 SCC  409.  The learned counsel for the respondent has, however,  placed reliance on a subsequent judgment of this Court in  State of T.N. & Anr. Vs. Alagar (2006) 7 SCC 540 to  contend that the period during which the detenu appellant  had remained outside custody on account of a wrong order  could not be taken into account in computing the period of  detention and that it was still open to the detaining authority  to examine as to what was to be done in the circumstances of  the case keeping in view certain specified factors.              4.      We have heard the learned counsel for the parties and  gone through the record.  In Sunil Fulchand Shah (supra) the  Bench was dealing with the question posed as under:         "First, 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 erroneous High Court  order."

This question was answered in the following terms:         "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 upon 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.

       A detenu need not be sent back to undergo the  remaining period of detention, after a long lapse of  time, when even the maximum prescribed period  intended in the order of detention has expired,

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unless there still exists a proximate temporal nexus  between the period of detention indicated in the  order by which the detenu was required to be  detained pursuant to the appellate order and the  State is able to satisfy the court about the  desirability of "further" or "continued" detention."

5.      This judgment was followed in Alagar’s case and in  paragraph 9 it was observed that: "The residual question is whether it  would be appropriate to direct the  respondent to surrender for serving  remaining period of detention in view of   passage of time.  As was noticed in Sunil  Fulchand Shah vs. Union of India and State  of T.N. v. Kethiyan Perumal it is for the  appropriate State to consider whether the  impact of the acts, which led to the order of  detention still survives and whether it would  be desirable to send back the detenu for  serving remainder period of detention.  Necessary order in this regard shall be  passed within two months by the appellant  State. Passage of time in all cases cannot be  a ground not to send the detenu to serve  remainder of the period of detention. It all  depends on the facts of the act and the  continuance or otherwise of the effect of the  objectionable acts. The State shall consider  whether there still exists a proximate  temporal nexus between the period of  detention indicated in the order by which  the detenu was required to be detained and  the date when the detenu is required to be  detained pursuant to the present order."

6.      A reading of the above quoted paragraphs would reveal  that when an order of a Court quashing the detention is set  aside, the remittance of the detenu to jail to serve out the  balance period of detention does not automatically follow and  it is open to the detaining authority to go into the various  factors delineated in the judgments aforequoted so as to find  out as to whether it would be appropriate to send the detenu  back to serve out the balance period of detention.  In this  view of the matter, we are of the opinion that the detaining  authority must be permitted to re-examine the matter and to  take a decision thereon within a period of 3 months from the  date of the supply of the copy of this order.  We further direct  that during this period the interim order in favour of the  appellant given by us on 30th April 2007 will continue to  operate. 7.      The appeals are allowed in the above terms.