SDICTION Writ Petition Criminal No248 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 29488 of the Gujarat High Court in Special Criminal Application No 886 of 1986
UR Lalit MG Karmali JB Patel and KMM Khan for the petitioner in WP Crl
No 24888 and SLP Crl No 149288
TU Mehta Mrs Hemantika Wahi and MN Shroff for the State of Gujarat in WP Crl
No 24888 and SLP Crl No 1492 88
869 Kuldip Singh Additional Solicitor General CVS Rao and A Subba Rao for the Respondents in WP Crl
No 24888 and SLP Crl No 149288
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 
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 nota 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 vs Adam Kasam Bhaya   State of Gujarat vs Ismail Juma  Ors   Smt
Poonam Lata vs ML Wadhawan and others AIR 1987 SC 1383 and Pushpa devi M Jatia vs ML Wadhavan  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 section 51 and section 154 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 vs Adam Kasam Bhaya  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


Summary:
The petitioner was born and studied upto class IX in Delhi
In 1982 she left for Nigeria along with her parents where her father went on deputation
There she passed the General Certificate of Education Ordinary Level conducted by University of London which was recognised by the Central Board of Secondary Education New Delhi as equivalent to Class XI in India
She returned to India along with her family in 1984
After passing the All India Senior School Certificate Examination in 1985 she appeared for entrance examination for admission to one of the three Medical Colleges in Delhi and passed the test
But she was denied admission because she had not satisfied the further condition that the last two years of education should be had in a school in Delhi
Aggrieved by the denial of admission the petitioner filed a writ petition in this Court
By an order dated 31st July 1987 this Court allowed the Writ Petition and directed the respondents to admit her in one of the three Delhi Medical Colleges in the first year course prescribed for the MBBS Degree
Giving reasons for the said order this Court HELD 1
Rules are intended to be reasonable and should take into account the variety of circumstances in which those whom the rules seek to govern find themselves
861C 2
The qualifying condition that a candidate appearing for the 859 entrance examination for admission to a Medical College in Delhi should have received the last two years of education in a school in Delhi is unreasonable when applied in the case of those candidates who were compelled to leave India for a foreign country by reason of the posting of the parent by the Government to such foreign country
There is no real choice in the matter for such a student and in many cases the circumstances of the student do not permit her to con tinue schooling in India
Theoretically it is possible for a student to be put into a hostel to continue her schooling in Delhi but in many cases this may not be feasible and the student must accompany the parent to the foreign country
860H 861A 3
The rigour of the condition prescribing that the last two years of education should be received in a school in Delhi should be relaxed and there should be no insistence on the fulfilment of that condition in the case of students of parents who are transferred to a foreign country by the Government and who are therefore required to leave India along with them
Therefore the denial of admission to the petitioner to a seat in one of the Medical Colleges in Delhi was unreasonable
861B 861E