SMT. POONAM LATA A v.

M.L. WADHAWAN & ORS.

,...[~- \

APRIL 22, 1987 ! i .

[A.P. SEN AND RANGANATH MISRA, JJ.] B

Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974: ss. 3 & 12-Preventive detention-Period of

,.., parole-Whether could be added to period of detention-Court whether competent to grant parole.

~ ric Constitution of India: Articles 226 and 32-COFEPOSA Act- Preyentive detention-Powers of the Court to release on parole.

-..\

Words & Phrases: 'Parole'-'detain'-Meaningof.

D Sub-section (6) of s. 12 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. 1974 prohibits release of a detenu on hail, or bail bond or otherwise, during the period a detention order is in force. Suh-sections (I) and (IA) of s. 12, however, permit temporary release by the Central or State Governments on certain E terms a.nd conditions. Section 10 provides for a maximum period of ) detention of one year In cases to which provisions of s. 9 do not apply.

~ The husba"d of the petitioner was detained under s. 3(1) of the Act by an order d11ted February 28, 1986. His representation under s. 8(b) was rejected by the detaining authority on April 4, 1986. The F Advisory Board in its sittings on April 28, and 29, 1986 concluded that there was sufTicient cause for detentiou. The order of detention was

confirmed by the Minister on May 14, 1986.

The writ petition filed under Article 32 of the Constitution on G April 23, 1986 was heard by the Vacation Judge on May 15, 1986 who made an order for the release of the detenu on parole and directed the matter to be listed in early August of 1986. The case, however, could not be listed till January 14, 1987, and was finally heard on March 3,

1987. The detenu had been out of jail during the entire period. The period of one year expired on February 28, 1987.

A It was contended for the petitioner that the period of parole from May 15, 1986 till February 28, 1987 could not be added to the period of detention specified in the order under sub-s. (1) of s. 3 of the Act, that'.,_.

II. the period of qne year from the date of detention having expired .in I February 28, 1987 the order of detention had lapsed entitling the detenu to be freed, and that once the detenu is taken into custody under the Act B pursuant to an order of detention the running of time would not be arrested merely because the court directs the release of the detenu on parole. Relying on the decision in Lala Jairam Das & Ors. v. Emperor. (AIR 1945 PC 94) it was contended that the court cannot on general .:.. principles add the period of bail or parole to the period of detention, and that the ratio laid down in Amritlal Channumal Jain etc: v. State of c~ - C Gujarat & Ors., (W.P. Nos. 1342-43 of 1982 decided on July IO, 1985) that the period during which a detenu was on parole should be taken into account while calculating the period of detention has to prevail and

must be taken as binding. ) .

. Dismissing the writ petition. the Court.

HELD: I. The period of parole of the detenu from May 15, 1986 to February 28, 1987 has to be excluded in reckoning the period of his detention for one year under sub-s. (1) of s. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,

1974. [1136D, G-H]

2.1 The purpose and object of s. IO of the Act is to prescribe not only a maximum period for which a person against whom a detention order under the Act is made may be held in actual custody pursuant to the said order but also the method by which the period is to be computed. The key to the interpretation of the section is in the words "may be detained." The subsequent words "from the date of detention" which follow the words "maximum period of one year" merely define

the starting point from which the maximum period of detention of one y year is to be reckoned in a case not falling under s. 9. There is no justifiable reason why the word "detain" should not receive its plain and natural meaning 'to hold in custody'. [1134B; 1133G, EP]

G 2.2 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. In such a case he was not in actual custody. The order of detention prescribes the place where the detenu is to be detained. Parole brings him out of confinement from that place and detention as contemplated by the Act is interrupted until the detenu is H put back into custody. The running of the period recommences then and

a total period of one year bas to he counted by putting the different periods of actual detention together. In the instant case it cannot, therefore, be said that the period during which the detenu was on parole has to be taken into consideration in computing the maximum period of detention authorised by s. IO of the Act. [11339; 1134AD I

Barish Makhija v • . State of U.P., Crl. M.P. No. 620 of 1984 In W.P. (Crl.) No, 301of1983 decided on February 11, 1985; State of Gujarat v. Adam Kasam Bhaya, [1982) 1 SCR 740 and State of Gujarat

v. Ismail Juma & Ors., [1982) 1SCR1014, referred to.

Amritlal Channumal Jain etc. v. State of Gujarat & Ors., Writ Petitions Nos. 1342-43of1982 decided on July IO, 1985, distinguished.

3. Parole is the release of a prisoner from a penal or correctional institution after he has served a part of his sentence under the continuous custody of the State and under conditions that permit his in carceration in the event of misbehaviour. It is a grant of partial liberty or lessening of restrictions to a convict prisoner and does not change the status of the prisoner. [1131E, BC)

Preventive detention is not punishment. The scheme of s. 12. unless temporary release by the appropriate Government is taken to be one of parole, keeps away parole from the subject of preventive detention. [U30F; 1135F)

4. 1 What in a given situation should be the sufficient period for a person to be detained for the purpose of the COFEPOSA Act is one for the subjective satisfaction of the detaining authority. Preventive detention jurisprudence in this regard is very different from regular conviction followed by sentence that an accused is to snffer. [1134EF) F

4.2 Whether it be under Art. 226 or Art. 32 of the Constitution, the Court has no jurisdiction either under the Act or under the general principles of law or in exercise of extraordinary jurisdiction to deal with the duration of the period of detention either by abridging or enlarging it. The only power that is available to it is to quash the order in case it is G found to be illegal. It would not, therefore, be open to the Court to reduce the period of detention by admitting the detenu on parole. [1134F , E)

5. Sub-s. (6) of s. 12 of the Act puts a statutory bar to the release of the detenu after an order of detention has been made and the detenu lodged in custody. It is the appropriate Goverment and not the Court H

A which deal with a case of temporar)' release of the detenn under subss.(I) and (IA) of s. 12 of the Act. The detenu seeking to have the benefit of temporary relief most go to the appropriate Government first. Tljl.>·' Court cannot entertain his application for parole straightaway. On the principle that exercise of administrative jurisdiction is open to judicial review by the superior Court, the High Court under Art. 226 or this B Court under Art. 32 may in a given case examine the legality and propriety of the Government action. [1135E, C, F, G; 1136A; 1135H]

Samir Chatterjee v. State of West Bengal, [1975] l SCC 801; State of Bihar v. Rambalak Singh & Ors., [1966] 3 SCR 344 and State of Uttar Pradesh v. Jairam & Ors., [1982] l SCC 176, referred to.

Babula! Das v. State of West Bengal, [1975] l SCC 3ll; Anil Dey

v. State of West Bengal, [1974] 4 SCC 514 anit'Golam Hussain v.

Commissioner of Police, Calcutta & Ors., [1974] 4 SCC 530, overruled.

6. It is desirable to insert in the COFEPOSA Act or the Roles D made thereunder a provision like sub-s.(4) of s. 389 of the Code of

Criminal Procedure, 1973 that when an action is taken under s. 12 of the Act and the appropriate Government makes a temporary release order the order of such temporary release whether on bail or parole has to be excluded in computing the period of detention. [1136C]

E Lala Jairam Das & Ors. v. Emperor, AIR 1945 PC 94, referred to.

ORIGINAL JURISDICTION: Writ Petition (CrL) No. 292 of . 1986:

F (Under Article 32 of the Constitution of India).

Ram Jethmalani, Ms. Rani Jethmalani and A.K. Sharma for the Petitioner.

Anil Dev Singh, Mrs. Indra Sawhney and Ms. S. Relan for the G Respondents.

The Judgment of the Court was delivered by

SEN, J. By this petition under Article 32 of the Constitution, the petitioner Smt. Poonam Lata has asked for the issue of a writ of habeas H corpus for the release of her husband, Shital Kumar who has been

.).. -

- - --------------------~

( detained by an order passed by the Additional Secretary to the Gov- A , emment of India, Ministry of Finance, Department of Revenue, dated

Febru&ry. 28, 1986, made under, section 3(1) of Conservation of Foreign Exc'.;; mge and Prevention of Smuggling Activities Act, 1974 (hereinafter' rderred to as the. 'Act'), on being satisfied that it was. necessary to' detain him "with a view to preventing him from dealing in smuggled goods"..

Put very briefly,· the essen; ial facts are these. The Directorate f • Enforcement, New Delhi, gathered intelligence over a period of time before making of the impugned order of detention which revealed that the detemi was engaged in receiving smuggled gold from across the Indo-Nepal Border and was making payments in foreign currency and C remitting the sale proceeds of such smuggled gold out of the country in the shape of U.S. dollars with the help of carriers. On February 26., 1986, the Directorate received information that the three carriers, namely, Ram Deo Thakur, Sh yam Thakur and Bhushan Thakur would be leaving under the assumed names of Dalip, Mukesh and Rajesh respectively by 154 Dn. Jayanti Janata Express leaving New Delhi D Railway Station at 6.45 p.m. Accordingly, the officers of the Delhi ' Zone of the Directorate mounted surveillance at Platform No. 5 of the , .

Railway Station froni which the train was to steam off. The said carriers weredetrained and upon search of their baggage,: the officers recovered $ 29,750 and Rs.1500 from Ram Deo Thakur @ Dalip, $ 28,900 and Rs.650 from Shyam Thakur @ Mukesh and $ 20,000 and E Rs. l,000 from Bhushan Thakur@ Rajesh. The same ware seized under section 110( 1) of the Customs Act, 1962. The total value of the seized foreign currency wasequivalent to Rs.10,25,000 in round figure. During interrogation by the officers under section 108 of the Customs Act, • th_ese persons stated that the seized foreign currency totalling $ 78,650

' had been paid by the detenu towards the price of 48 gold biscuits of F _..,. foreign origin brought by them from Darbhanga to New Delhi and made over to him and accordingly the detenu was taken into custody on February 27, 1986. He too made a statement under s. 108 of the Act confessing that he was dealing in smuggled gold brought across the Indo-Nepal Border and has been remitting the price of such gold in U.S.' dollars ihrough different carriers.

\ ._ On February 28, 1986, the detenu was served with the impugned order of detention along with the grounds thereof and copies of the relevant documents relied upon in the grounds. On March 25, 1986. the detenu submitted a representation under. section 8(b) of the Act and the detaining authority by its order of April 4, 1986 rejected the H

A' same. On April 12, 1986; the detenu made a representation to the " Advisory Board through the Superintendent of the Central Jail, Tihar.

The representation together with comments of the detaining authority and the relevant documents were forwarded by the. Ministry of .Finance, Department of Revenue to the Advisory Board. On the same day the detenu appears to have made a representation to the Central B Government and it was received in the Ministry of Finance on April 24,

1986. The Minister of State for Finance rejected the said representation on April 28, 1986 and the detenu was informed about it the following day. The Advisory Board had its sittings on April 28 and 29, 1986, and came to the conclusion that there was sufficient cause for the detention and sent its report on May 8, 1986. The Minister considered C . the report of the Advisory Board and confirmed the order of detention on May 14, 1986 and the Central Government's order of confirmation was duly communicated on May 26, 1986. ·

 The representation of the detenu was still before the Advisory Board when the petitioner moved this Court under Article 32 of the D Constitution on April 23, 1986. On April 29, 1986, notice was ordered by the Court returnable on May 3, 1986, and it directed that the matter may be placed before the Vacation Judge on May 15, 1986. On that date, the learned Vacation Judge made an order for the release of the detenu on parole in the following terms:-

E .~ "The detenu is released on parole until further orders on

...._---:--_ ,

the condition that he will report to the Directorate of Revenue Intelligence, New Delhi every day and the Directorate will be at liberty to ask him to explain his conduct during this time.

Reply affidavit may be filed within two weeks. The matter will be listed two weeks after re-opening of the Court after summer vacation. ' In the meantime, the respondents will be at liberty to make an application for the revocation of the parole if any misconduct or any other activity comes to theii notice .. which requires the revocation of the parole."

/ Notwithstanding the order of the learned Vacation Judge that the matter should be listed within two weeks after the re-opening of the Court after the long vacation-it should have been some time in H early August of 1986-thecasewasnotlisted till January 14, 1987. The.

respondents also took no'steps to apply for early listing of the matter. (on January 14, 1987, a 'prayer was made by the learned counsel appearing for the Union of India seeking two weeks' time to file an additional affidavit and the case was ordered to be listed on March 3,

1987.puring all these months, the detenu has been out of jail.

' ' Indisputably the detention was for one year. When the matter B came up for hearing' on the 3rd of March, 1987, Shri Jethmalani, -., learned counsel for the petitioner confined his submissions to only one aspect, namely, that the period of parole i.e. from May 15, 1986 till February 28, 1987, could not be added to the period of detention

- specified in the impugned order under sub-s. (1) of s. 3 of the Act and the period of one year from the date of detention having expired on C February 26, 1987, the impugned order had lapsed and the detenu

- became entitled to be freed from the shackles of the order of detention. According to the learned counsel, section 10 of the Act prescribes the maximum period of detention to be one year or two yars, as the case may be, from the date of detention or the specified period, whichever expires earlier. Admittedly in respect of the detenu no decla- D ration under se'ction 9 of the Act has been made and, therefore, the maximum period of detention so far as he is concerned is one year and it has to be reckoned as prescribed under section 10 of the Act. That section indicates not only the starting point but also the outer limit. In other words, the argument is that once the detenu is taken into custody ). under the Act pursuant to an order of detention, the running of time E would not be arrested merely because the Court directs release of the detenu on parole. ·

 Shri Jethmalani drew a distinction between 'bail' and 'parole'; he contended that' preventive detention was not a sentence by way of IL punishment and, therefore, the concept of serving out which pertains F to punitive jurisprudence cannot be imported into the realm of preven- "1 tive detention.• According to him, the grant of parole to a detenu amounts to a provisional release from confinement; yet the detenu continues tO be under judicial detention; release from jail custody subject to restrictions imposed on free and unfettered movement transfers the detenu to judicial custody. Since there is no provision to G authorise interruption of running of the period of detention, release on parole does not bring about any change in the situation. It has further -:f beeii argued that when the Court entertains a writ petition for grant of ·

habeas corpus and issues a rule nisi,' the detenu is deemed to have come into judicial custody and the effect of grant of parole does not H terminate such custody but merely allows greater freedom of move-

A ment to the detenu. Conditions imposed on the detenu during parole / ~· impinge upon his freedom and liberty; therefore, the period during ·

which a detenu is released on parole cannot be taken as a perio(j during which the detention is not operative. Shri Jethmalani placed reliance on the ratio of the Privy Council decision in Lala Jairam Das & Ors. v. Emperor, AIR 1945 PC 94 to contend that but for the special provision contained in sub-section (3) of s. 426 of the old Code of Criminal Procedure, 1898 (corresponding to s. 389(4) of the Code of

1973) the power of the Court to grant bail to a convicted person or accused would not include a power to exclude the period of bail from the term of.the sentence. The same principle ought to apply in the case of release of a detenu on bail or parole and the Court therefore cannot on general principles add the period of bail or parole to the period of detention. In the absence of any provision regarding the grant of parole and the computation of the period thereof and in view of the special provisions contained regarding commencement and the computation of the period of detention of one year, the period of parole cannot be deducted while computing the period of one year of detention. The learned counsel also relied upon the direction made by a Bench of three Judges in the case of Amritlal Channumal Jain etc. v. State of Gujarat &

Ors. (Writ Petitions Nos. 1342-43, 1345-48 and 1362 of 1982 and No. 162 of 1983 dated July 10, 1985) where this Court directed that the period during which a detenu was on parole should be taken into account while calculating the total period of detention. According to learned counsel the direction in Amritlal Channumal Jain's case was given after a Bench of two Judges in Harish Makhija v. State of U.P. Crl. M.P. No. 620 of 1984 in U.P. (Crl.) No. 301of1983 held on February 11, 1985, that the period of parole cannot be counted towards the period of detention.

Shri Jethmalani has submitted that in view of the direction of the larger Bench of this Court, the ratio laid down in Amritla/ Channumal Jain's case (supra) has to prevail and must be taken as binding on us.

There is no denying the fact that preventive detention is not punishment and the concept of serving out a sentence would not legitimately be within the purview of preventive detention. The grant of parole is essentially an executive function and instances of release of G detenus on parole were literally unknown until this Court and some of the High Courts in India in recent years made orders of release on parole on humanitarian considerations. Historically 'parole' is a concept known to military law and denotes release of a prisoner of war on promise to return. Parole has become an integral part of the English and American systems of criminal justice intertwined with the evolu- H tion of changing attitudes of the society towards crime and criminals.

.l-..

As a consequence cif the lntroduciion 'of paroi~ into the penal system, A -i all fixed-term sentences of imprisonment of >1bove 18 months are sub- ' ject to release on .licence, that is, parole after a third of the period of sentence has beeri served. In those countries, parole is taken as an act of grace and not as a matter of right and the convict prisoner may be released on condition that he abides by the promise. It is a provisional ' .- ' . ' B release from confinement but is deemed to be a part of the imprisonment. Release on parole is a wing of the. reformafrve process and is ' expected to provide opportunity to the prisoner to _transform himself into a useful citizen. Parole is thus a grant of partial liberty or lessening -)- of restrictions to a convict prisoner, but release on parole does not change the status of the prisoner: Rules are framed providing supervision by parole authorities of the convicts released on parole and in case c of failure to perform the promise, the .convict released cin parole is

directed to surrender to custody. (See: The OXford companion to Law, edited by Walker, 1980 edn., p. 931, Black's" Law Dictiqnary, 5th edn;; p.1006, Jowitt's Dictionary <Jf English Law, 2nd edn., Vol. 2, p. 1320, Kenny's Outlines of Criminal Law, 17th'edri., p. 574-76, The D English Sentencing System by Sir Rupert Cross at pp. 31-34, 87 et seq., American Jurisprudence, 2nd edn., Vol. 59, pp. 53-61, Corpus Juris Secundum, vnl. 67, Probation and Parole, Legal and Social Dimensions by Louis P. Camey). It follows from these authorities that parole r

is the. release of a very long term pri_soner from a penal. or correctional institution after he has served a part of his sentence under the continuous custody .of the State and under conditions that permit his E

~ incarceration in the vent of misbehaviour.

-~ There is abundance of authority that High Courts. in exercise of their jurisdiction under Article 226 of the Constitution do not release a detenu on bail or parole. There is no reason why a different view F 1 . should betaken in regard to exercise of jurisdiction under Article 32 of the Constitution particularly when the power to grant relief to a detenu in such proceedings is exercisable on very narrow and limited grounds. In State of Bihar v. Ramba/ak Singh & Ors., [1966] 3 SCR 344 a Co.nstitutio, p Bench laid dow11 that the release of.a detenu placed under detention under Rule 30 of the Defence of India Rules, 1962. on G bail pend\rig tJte hearing of a petition for grant of a writ of habeas

corpus was an improper exercise. of jurisdiction. It was observed in that case that if the High.Court was of the view that.prima facie the impugned order of deierition was paiently .illegal in that there was a serious defect in the order of detention which would justify the release of.the detenu, the proper.and more sensible.and reasonable course would invariably be to expedite the hearing of the writ petition and H

. ' deal with the merits without any delay rather than direct release of the A iletenu oil bail. Again, in Stale of Utta, r Pradesh y. Jalram tl On,, \ [ 19821 1 SCC 176 a three-Judge Bench speaking throuah Ch1111drll- ,_. chud, CJ., referred to Rambalak Singh's case and set aside the order passed by the learnd Single Judge of the High Court admittlnll thl! detenu to bail on the ground that it was an improper exrlse uf jufi~, B diction. As to grant of parole, it is worthy of note that In none uf the l:i cases this Court made a direciion under Arflele 32 of the tml81ilutitlll for grant of parole to the detenu but left it to the. exeeutive to consider ). whether it should make an order in terms ut the relevant provision for

temporary release of the person detained as under section 12 gf thi! _ COFEPOSA, in the facts and circumstances of a pnrtlular tii!stl. Ill + Samir Chatierjee v. State of West Bengal, ( 107SI i See 801, the Court C set aside the order of the Calcutta High. Court releasing otl paftlle ll pers?n detained unde~ S. 3( I) o.f the Maintenanc@ of IH!@fftlll _!i~EUtity 1 Act, 1971 and unequivocally viewed with dl8fllvtlUf th~ obsetvahons r made by Krishna Iyer, J. in Babula/ Das v. Sml~ of W@Jl lliillgal, tl!l75l

E '

1 sec 311 to the effect:

"While discharging the rule issued and di!miisi11g the pell' lion, we wish to emphasize thats, 151• ofleH lo!il sight tl! by the Government in such situations, bs luttg term preventive detention can be self-defeating ur rillillllly counter-productive. Section 15 read8: -1

15. Temporary release of persons detained-

( 1) " . . ..

(2) ...

(3) ...

(4) ...

(5) ...

We consider that it is fair. that persons kept incarcerated and embittered without trial should be given some chance to reform themselves by reasonable recourse to the parole L power under s. 15. Calculated risks, by release for short r periods may, perhaps, be a social gain, the beneficent jurisdiction being wisely exercised."

, Alagiriswamy, J. speaking for the Court, observed in no uncertain terms:

~·

"We fail to see that these observations lay down any princi- A pie of law. Section 15 merely confers a power on the Government. The power and duty of this Court is to decide cases coming before it according to law. In so doing it may take various considerations into account. But to advise th.e Government as to how they should exercise their functions or powers conferred on them by statute is not one of this B Court's functions. Where the Court is able to give effect to its view in the form of a valid and binding order that is a different matter. Furthermore, section 15 deals with release on parole and there is nothing to show that the petitioner applied for to be released on parole for any specific purpose. As far as we are able to see, release on C parole ls made only on the request of the party and for a specific purpose."

The innovative view expressed by Krishna Iyer, J. in Anil Dey v. State of West Bengal, (1974] 4 SCC 514 which he tried to reiterate in Golam Hussain v. The.Commissioner of Police, Calcutta & Ors., [1974] 4 SCC D 530 and in Babu/al Das' case, (supra), therefore, no longer holds the field, and rightly so, because the Court cannot usurp the functions of the Government.

Section 10 of the Act provides that the maximum period for which any person may be detained in pursuance of an order of detention to which provisions of section 9 do not apply shall be for a period of one year from the date of detention or the specified period, whichever expires earlier. The key to the interpretation of section 10 of the Act is in the words 'may be detained'. The subsequent words 'from the date of detention' which follow the words 'maximum period of on~ year' merely define the starting point from which the maximum period of detention of one year is to be reckoned in a case not falling under section 9. There is no justifiable reason why the word 'detain' should not receive its plain and natural meaning. According to the Shorter Oxford English Dictionary, vol. 1, p. 531, the word 'detain' means "to keep in confinement or custody". Webster's Comprehensive Dictionary, International Edition at p. 349 gives the meaning as "to hold in custody". The purpose and object of s. 10 is to prescribe a maximum period for which a person against whom a detention order under the Act is made may be held in actual custody pursuant to the said order. It would not be violated if a person against whom an order of detention is passed is held in actual custody in jail for the perod prescribed by the section. The period during which the detenu is on parole cannot be

1134 '.!.

said to be a period during which he has beenheld.in custody pursuant !:'- to \lie "brder of his 'detention," for in such a case 'lie was not in actual cusfody .The order of deterition prescribes ihe place wliere the detenu is' tii be detained. Parole brings him out of'confinement from that place. Whatevei may be ilie'terms and conditions imposed for grant of ' ·

I'' - _ f' ' • ' ' '. '" • ,.

-· ' - .. ·--I ' ' .'l • '. ' : •i • parole; detention as contemplated by the Act is interrupted when B releiise'on parole is' obtairied. The position wouid be weil met by the t! appropriate answer io the question "bowJong hasttie' dteriU been in . actiial custody pursuat to the'ordet?" According tolt~'ptain construc- 'tiiin' ;'ihe' piii-pose 'iind 'object ofs. 10 'is io prescribe' i10l' only for the 'mrudriium periodbut also' the' method by' which ihe pnod is to be

ciJniputed. The coiiipll!ation lias'to rominelice froni the dntg on which the deteiiu is taken into actual. custodfbt if it is' ittilltfiipted by an order of parole, the detention woUJd not 'i:ontinl1e 'when parole

operates and until the 'deteliu is'put' back info custody :'rlie running of the period recommences then and a total period Mone' year has to be .}.. countedby putting the di, fferent peri0<:ls of actualdetention together.

Wi see no force in Shri Jethmalani's submission that the period durin'g lp which', the Cletenu was cin'parole has to biaken Into consideration in

computing the ifiaxlmuin' perit>d o{ tletentfon authorised h}'..Section 10 ofth.e'ACt. ·;,. · _h - .. • \ •• ,.., ·\· ., •

F 1

0 "

11•,'

'' frJJ~• l I \, It is pertinent to observe that the Court has no power to substitute the period of detention either by abridging or enlarging it. The only power that is available to ihe Court is to quash the order in case it is found to be illegal. That being.so, it would not be. op~',{"io the Court " ' ' ,_ . ' ... ' •. ,-i • ' ' ') ' - .. ' ' - ' -

- - "' ' .. to reduce the period of detention by admitting the detenu on parole.

What in a given siillaiion should be the sufficient period for a persbn to be: detained for .ilie purpose of the' Act is one f.o.r.the subjective satis: faction of the detaining authority. Preventive detention jurisprudence in(this reg'ard

0is 1very different from" regular oonviction followed by se!1ience hat aii ai:cuse~ is lo suffer. :wh!!her it"be, un~r '.rtile' 226 or'Article 32 of the Consiitution, the Court would, therefore, have rio jOristlictiim either 'under the Act' oi under .t.he gener'a! plnciples of law or'in exeii:ise 'of extrofdinary jurisdiction 'lo deai 'with the (!ration of

tile period of detention: ' . ' '"' " " •• ' " ' ; ' -")l\ i .. ~.n ',,\, f, __ ' I ,\ ,; .. ·•'l

; ~,. ft,<>\} ·.· ,.•· ' , •

Ol _- '. - - ' · :· _ - ' . -._ .. ,·;- .. ; ,-, :\_\.i' - ·-l' '" Parliament has aut.hoiised the detention. of. persons under the COFEPOSAto sel'Ve iwci'pu'rposes:-· • ' ' ' · ·

~,1 !·~/!lb r~ 11

\; I ' ;- :/l< .,_ ' .1r.t ., ;..j tt1-~ ' ·" ·,,, ,,-., :l _t-h,;:. > ., e '_ .. , 'I 1 ·· '(:.",. '-t;.•<i!,

J~ . "( 1) to prevent ihe 'person concerned from engaging .him-, . ' ,,,,; ' ' self in an activiiy prejudicial to the 'conservation of foreign

rtl /' l ,, exchange and also preventing him from"singgling activities' 1-i:: !.; i!111 ,'f. ~.' . i.•J ·, ;11, ' .. '"'' '-·:-' .. ~.-~

r-'

- .+-

. and threby to rendetJ1im immobi_le fo~ the period con- , A

' sidered necessa, ry by the. detainipg authority so that 'during

tht period the society is protected from, .such prejudicia\ activities on the part of the detenu. And , . . " , . . .

If' l '

~, " ~

., I , . , ··: ,, I.ti f .. !· •f'

(2) In order to break the links between the person so .I rl

pgagd and the S?Urce 'of . such activity and frqm his ' B associates engaged in_ that activity' or to break the con ti- , j nlliiY'of such prejudicial aciivitis so that it would _become I 'difficult; if not impossible, for.him to resume the .activities.".

• • • • ' • • ' • " l ' . . • .• . - _, . ' ' •

.· . . . . : , , -· 'I -. . l> . f , . " r 1 • • , ~) Release of a detenu on parole lifter an order of detention has been·• made and itie de'tef!u lodged in custody.for achieving one or the other,. C of the afores_aid legislative. objects is thus contrary to the purpose .9~ . --\ the statute. "There is a statutory prohibition against release of a detenu"

during the period of detention in sub-section ( 6) of section 12 of the Act. That sub-section which wa~ ins_erted by Amending Act 39 of '1975 witheffectfrom1.7.1975reads:- · , •·,· -.. , .. 1. 1 '

"'\'I~· .1"1-: 1,. -:·., y - ~; . 1,, ·/ ,,.",._,,.f. D ' "Notwithstanding anything contained in any other law and save ·.as othenvise provided in this sec; tion, , no person.,\ ' , agau; st whom a. detention order made under this Act is in

'_fore~ sh!l; ll e.rleased whether. 011. b_ail or bail bond or .•

.. Otherwise.'' , ·.v h •

~ I.I •• f

H. __ /'..,.,' " ' >.,•.: ,, ·,,. -,, ' . Hi • ) E

Sub-section.( 6) puts a statutory bar to the release of the detenu during i' the period of detention in a mann_er otherwise.than the one provided in,;· section 12. Section 12 authorises either the Central Government or the-.

St, ite Goyemment to iemporarily release the deteu.on such tenns and,~ conditions as . the appropriate Governmentconsiders'" necessary to i' I "1 impose. -The.scheme of section 12, unless release by the a:ppropriate'•F Governmem is.taken to.be one of parole, keeps away parole from the" rt subject of prventive detention. At any. rate,. it is the -appropria'te-11• Government and. not .the Court which deals with a tase .of temporary"' release of the detenu. Since the Act authorises the appropriate Goveqtm".nt .to m_ake an order of temporary rele.se, .invariably 1the D detenu seeking to _have .the jjenefii of tempqrary relief must go.to the, i , G appropriate' Govemmnt first. , Itmay be that in. a giyen case the Co_urt. I .I! may be ieq'uiiea'"i9.cotji_der the:proprle!y of, an adverse or!lerby:the _.q

Governpien~, in exe!, c, i, se of. the jurisdiction under ;""; C_tion ;12 of the Act., q, On the principle that exercise of administrative jurisqiction is.open , to ,

judici~1 revie~' by :fhe supenor court, the High Court unger Article 226 )': H or this Court under Article 32 may be called upon in a suitable case to H

A examine the legality and propriety of the governmental action. There is no scope for entertaining an application for parole by the Court straightaway. The legislative scheme, keeping the purpose of the statute and the manner of its fulfilment provided thereunder, would not

jstify entertaining of an application for release of a detenu on parole.

Since in our view release on parole is not a matter of judicial determi- B nation, apparently no provision as contained in the Code of Criminal Procedure relating to the computation of the period of bail was thought necessary in the Act. But we would like to point out to the Government the desirability of inserting a provision like sub-s.(4) of s. 389 of the Code of Criminal Procedure, 1973 that when an action is taken under section 12 of the Act and the appropriate Government C makes a temporary release order, the period of such temiiorary release whether on bail or parole has to be excluded in computing the period of detention. Either the statute or the rules made thereunder should provide for this eventuality.

In the premises, it must accordingly be held that the period of D parole has to be excluded in reckoning the period of detention under sub-section (1) of section 3 of the Act. We find it difficult from the observations made by. the three-Judge Bench in Amritlal Channumal Jain's case to infer a diiection by this Court that the period of parole shall not be added to the period of detention .. The words used 'shall be taken into account' are susceptible of an interpretation to the con- E trary. We find that an order made by a bench of two Judges of this Court in Harish Makhija's case (supra) unequivocally laid down that the period of parole cannot be counted towards the period of detention. This accords with the view taken by this Court in a bench of two Judges in State of Gujarat v. Adam Kasam Bhaya, [1982) 1 SCR 740 and State of Gujarat v.1smail Juma & Ors., [1982) 1 SCR 1014. In F view of these authorities which appear to be in consonance with the object and purpose of the Act and the statutory provisions and also having regard to the fact that the direction made in Amritlal Channumal Jain's case (supra) is capable of another construction as well, we do not find Shri Jethmalani's contention on this score as acceptable.

G For these reasons, the only contention advanced by Shri Jethmalani in course of the hearing, namely, that the period of parole from May 15, 1986 to February 28, 1987 could not be added to the maximum period of detention of the detenu Shital Kumar for one year as specified in the impugned order of detention passed under sub-s.(1) of s. 3 of the Conservation of Foreign Exchange & Prevention of Smuggl- H ing Activities Act, 1974, musi fail. The writ petition is accordingly

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dismissea .. T'll!!re s'1~11 be no order as to costs. We direct that the A --{ p~\ili!lnr s'1!111 l!nnder to custody to undergo remaining period of iletcinli!>lh Wfi give the detenu ten days' time to comply with this girnlltion failing which a non-bailable warrant for his arrest shall issue. r.s.s.

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Petition dismissed.

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