TMI Blog2000 (2) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... brother Nanavati, J. and I agree that these petitions should be allowed Long period has lapsed since the detenus in each of these cases were released and no material has been placed before us by the detaining authority to warrant further detention of the detenus at this distant point of time. The detenus, in my opinion need not be directed to undergo "the remaining period of detention" because the nexus between detention and object of detention would appear to have been snapped during this period of about ten years, during which period detenus were free. In fairness to the learned Attorney General it must be stated that he fairly conceded this position. I find myself unable to fully subscribe to the view of brother Nanavati, J. relating to the treatment of the period during which a detenu is free as a result of an erroneous order of the High Court which is set aside on appeal. I would also like to give my own reasons in support of the answer to the other questions involved in these cases. It would be appropriate to first refer to the order of reference made by a 2-Judge Bench on 1st of May, 1989. That order reads thus : "This writ petition under Article 32 of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 engaging in mischief. It seems to us prima facie that one possible view can be that if parole is granted that period of parole should be counted within the total period of detention and not outside it. As regards the problem raised by the release of the 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(l) and s.l5(4) of the Administration 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 right 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 consideration of ,the law on the point." From the above order of reference, essentially the substantia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion. Would that period get automatically extended by any period of parole granted to the detenu is the next question? I shall deal with the other observation in Adam Kasam Bhaya's (supra) case viz. "if he has served a part of the period of detention, he will have to serve out the balance" separately, in "he later part of this order. Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanising the harsh authority over individual liberty. Since, preventive detention is a form of precautionary state action, intended to prevent a person from indulging in a conduct injurious to the society or the security of State or public order, it has been recognised as "a necessary evil" and is tolerated in a free society in the larger interest of security of State and maintenance of public order. However, the power being drastic, the restric-tions placed on a person to preventively ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permits the parliament and the State Legislature to make law providing for detention, without trial upto a period of three months without any safeguards but where the law seeks to provide for detention for a longer period than three months, it must comply with the constitutional safeguards which are found in sub-clauses (a) and (b) of Clause (4), though leaving it to the discretion of the detaining authority to decide what should be the maximum period of detention. Outside limit to the period of detention has, however, been laid down by the proviso which says that nothing in sub-clause (a) of Clause (4) shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under Clause (7). The question whether Parliament is itself bound to prescribe the maximum period of detention under Article 22(7) (b) of the Constitution in order that the proviso to Article 22(4)(e) might operate, is no longer res-Integra. The issue was considered by a Constitution Bench of this Court in Fagu Shaw, Etc. Etc. v. The State of West Bengal, [1974] 2 S.C.R. 832, and authoritatively answered. Since, I respectfully agree with the answer, I need not detain myself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Latin Terms and Words Phrases; p. 1410., 'parole' has been defined as : "A parole is a form of conditional pardon, by which the convict is released before the expiration of his term, to remain subject, during the remainder thereof, to supervision by the public authority and to return to imprisonment on violation of the condition of the parole." According to Words and Phrases (Permanent Edition) vol. 31; pp. 164, 166, 167; West Publishing Co. : "'Parole' ameliorates punishment by permitting convict to serve sentence outside of prison walls, but parole does not interrupt sentence. People ex rel. Rainone v. Murphy, 135 N.E. 2d 567, 571, 1 N.Y. 2d 367, 153 N.Y.S. 2d 21, 26. 'Parole' does not vacate sentence imposed, but is merely a conditional suspension of sentence. Wooden v. Goheen, Ky., 255 S.W. 2d 1000, 1002." "A 'parole' is not a 'suspension of sentence', but is a substitu-tion, during continuance of parole, of lower grade of punishment by confinement in legal custody and under control of warden within specified prison bounds outside the prison, for confinement within the prison adjudged by the court. Jenkins v. Madigan, CA. Ind., 211 F. 2d 904, 906. "A 'parole' d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenu should be released temporarily or not keeping in view the larger interest of the State and the requirements of detention of an individual. Terms and conditions which may be imposed while granting order of temporary release are also indicated in the other clauses of Section 12 for the guidance of the State. Clause (6) in terms prohibits the release of a detenu, during the period an order of detention is in force, 'on bail or bail bond or otherwise'. The expression 'or otherwise' would include release of the detenu even on parole through judicial intervention. Thus, parole, stricto-senso may be granted by way of a temporary release as contemplated by Section 12(1) or 12(1A) of COFEPOSA by the Government or its functionaries, in accordance with the Parole Rules or administrative instructions, framed by the Government which are administrative in character and shall be subject to the terms of the Rules or the instructions, as the case may be. For securing release on parole, a detenu has, therefore, to approach the Government concerned or the jail authorities, who may impose conditions as envisaged by Section 12(2) etc. and the grant of parole shall be subject to those terms and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parole. Even while on parole he continues to serve the sentence or undergo the period of detention in a manner different than from being in custody. He is not a free person. Parole does not keep the period of detention in a state of suspended animation. The period of detention keeps ticking during this period of temporary release of a detenu also because a parolee remains in legal custody of the State and under the control of its agents, subject at any time, for breach of condition, to be returned to custody. Thus, cases which are covered by Section 12 of COFEPOSA, the period of temporary release would be governed by the conditions of release whether contained in the order or the rules or instructions and where the conditions do not prescribe it as a condition that the period during which the detenu is out of custody, should be excluded from the total period of detention, it should be counted towards the total period of detention for the simple reason that during the period of temporary release the detenu is deemed to be in constructive custody. In cases falling outside Section 12, if the interruption of detention is by means not authorised by law, then the period during which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oneous order may not be given as a 'set off against the total period of detention. The actual period of incarceration cannot, however, be permitted to exceed the maximum period of detention, as fixed in the order, as per the prescription of the statute. The summary of my conclusions by way of answer to the questions posed in the earlier portion of this order are : 1. Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanising the harsh authority over individual liberty. In a democracy governed by the Rule of Law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation; 2. That S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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, 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 and the date when the detenu is 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; 7. That where, however, long time has not lapsed or the period of detention initially fixed in the order of detention has not expired, the detenu may be sent back to undergo the balance period of detention. It is open to the Appellate Court, considering the facts and circumstances of each case, to decide whether the period during which the detenu was free on the basis of an erroneous order sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1990 by adding the period for which he was on parole. After hearing the writ petition and S.L.P. filed by Sunil, a three Judge Bench of this Court on 1.5.1989 ordered that as the matter is of great public importance, these cases may be referred to a Bench of five Hon'ble Judges. Two learned Judges constituting the Bench (Pathak, CJI and M.N. Venkatachaliah, J.) referred to the four decisions of this Court in State of Gujarat v. Adam Kasam Bhaya, [1981] 4 SCC 216, State of Gujarat v. Mohd. Ismail Juma, [1981] 4 SCC 609, Poonam Lata v. M.L. Wadhawan, [1987] 3 SCC 347 and Pushpadevi M. Jatia v. M.L. Wadhawan, [1987] 3 SCC 367, which support the view 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 erroneous judgment of the High Court and the detenu is set free or the detenu is released on parole. They found some difficulty in accepting that view as correct. They further observed : "it seems to us prima facie that one possible view can be that if parole is granted the period of parole should be counted withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A bare reading of Section 10 makes it clear that the maximum period for which a person can be preventively detained under the COFEPOSA Act is one year from the date of detention. But if a declaration is made under Section 9(1) of the Act, then the maximum period for which he can be detained is two years from the date of detention. The period of one year or two years, as the case may be, has to be counted from the date of detention and from the date of the detention order. Though the Act permits revocation of the detention order and making of another detention order against the same person, it does not specifically provide what shall be the maximum period of detention in such a case. But it has been held that the total period of detention cannot exceed one year or two years, as the case may be. Section 12 which confers power on the Government to release temporarily a person detained does not specifically provide as to how that period is to be counted while computing the maximum period of detention. The question as to the date from which the period of detention has to be counted was raised for the first time before this Court in Adam Kasam Bhaya's case. In that case the detenu w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and unfettered movement. Dealing with the first reason this Court observed : "Since in our view release on parole is a matter of judicial determination, 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." Dealing with the other two reasons this Court held as under : "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 one 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 Section 10 is to prescribe a maximum period for which a person against whom a detention order under the Act is made ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned, the Act specifically lays down that a person against whom an order of detention has been passed shall not be released on bail or bail bond or otherwise [vide Section 12(6) of the Act] and that any revocation or modification of the order of detention can be made only by the government in exercise of its powers under Section 11. Incidentally, it may be pointed out that by reason of sub-section (6) of Section 12 of the Act placing an embargo on the grant of bail to a detenu there was no necessity for the legislature to make a provision similar to sub-section (4) of Section 389 of the Code of Criminal Procedurc.1973 [corresponding to sub-section (3) of Section 426 of the Code] for excluding the period of bail from the term of detention period." As regards the status of the detenu who is released on parole this Court observed as under : "Even if any conditions are imposed with a view to restrict the movements of the detenu while on parole, the observance of those conditions can never lead to an equation of the period of parole with the period of detention. One need not look far off to see the reason because the observance of the conditions of parole, wherever imposed, such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order passed in Harish Makhija's case on 11.2.1985 was as under : "It is obvious that the period of parole cannot be counted towards the period of detention. The petitioner should surrender and serve out remaining period of 141 days' detention." A three Judge Bench thereafter on 10.7.1985 in Amritlal Channumal Jain's case directed that "In-so-far as these cases are concerned, the period during which the petitioners were on parole shall be taken into account while calculating the total period of detention. The order of detention was passed more than two and half years ago." Rejecting the contention that the ratio laid down by the larger Bench in Amritlal Channumal Jain's case has to prevail and must be taken as binding, this Court observed as under "We find it difficult from the observations made by a three Judge .Bench in Amritlal Channumal Jain's case to infer a direction by this Court that a 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 contrary. We find that an order made by a bench of two Judges of this Court in Harish Makhija's case (supra) unequivocally la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of any limit prescribed by the Parliament detention can be for a period longer than one or two years. It is true that Article 22(7) (b) has been held permissive and, therefore, there can be a preventive detention legislation which does not provide for the maximum period of detention and a person can be detained thereunder for a period longer than one or two years. That, however, cannot justify the view that the provision prescribing maximum period of detention should be construed liberally. When the Parliament has chosen to fix the maximum period, the question as to how the said period is to be computed will have to be decided by considering the object of the legislation and the relevant provision, the words used in that provision and without being influenced by the nature of power conferred by Article 22(7)(b). COFEPOSA, like all other preventive detention laws, has been regarded as a Draconian Law as it takes away the freedom and liberty of the citizen without a trial and on mere suspicion. It is tolerated in a democracy governed by the rule of law only as a necessary evil. Though the object of such legislation is to protect the nation and the society against anti national an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the security of the State. The power to detain is to be exercised on being satisfied with respect to any person that with a view to preventing him from including in any prejudicial activity specified in Section 3, it is necessary to make an order for his detention. The satisfaction of the detaining authority must be genuine. It has, therefore, been held that there must be a live and proximate link between the grounds of detention and the purpose of detention. Unreasonable delay in making of an order of detention may lead to an inference that the subjective satisfaction of the authority was not genuine as regards the necessity to prevent the person from indulging in any prejudicial activity and to make an order of detention for that purpose. So also long and unexplained delay in execution of the order has been held to lead to an inference that satisfaction was not genuine. Once the detaining authority is satisfied regarding the necessity to make an order of detention a quick action is contemplated, and if detention is to be effective then it has to be continuous. Section 8(b) requires the appropriate Government to make a reference to the Advisory Board within five weeks from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y restored. Therefore, the period of temporary release on parole cannot be excluded from the maximum period of detention. Though the purpose and object of Section 10 is to prescribe not only the maximum period of detention but also for the method of computation of the period as contended by the learned Attorney General, the only inference that can be drawn therefrom is that the period of detention has to be computed from the date of actual detention and not from the date of the order of detention. Since Section 10 does not prescribe any other method, it is not proper to draw a further inference that the maximum period of detention is to be computed by excluding the period during which the detenu was released on parole. It was also contended by the learned Attorney General that the detenu cannot be permitted to take advantage of an order of parole or an invalid judgment of the Court. In such a case, there is not the question of extending the period of detention but ensuring that the original period of one year is worked out. It will not amount to punishing the detenu for any wrong done by the Court but it would amount to not permitting the detenu to take advantage of an order of par ..... X X X X Extracts X X X X X X X X Extracts X X X X
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