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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