TMI Blog1987 (4) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... rovide for this eventuality. In the premises, it must accordingly be held that the period of parole has to be excluded in reckoning the period of detention under sub-section (1) of section 3 of the Act. 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 Smuggling Activities Act, 1974, must fail. - Writ Petition (Crl.) No. 292 of 1986 - - - Dated:- 22-4-1987 - SEN, A.P. AND MISRA RANGNATH, JJ. For the Petitioner : Ram Jethmalani, Ms. Rani Jethmalani and A.K. Sharma For the Respondent: Anil Dev Singh, Mrs. Indra Sawhney and Ms. S. Relan JUDGMENT 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 corpus for the release of her husband, Shital Kumar who has been detained by an order passed by the Additional Secretary to the Government of India, Ministry o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts 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 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 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 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 representatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be, from the date of detention or the specified period, whichever expires earlier. Admittedly in respect of the detenu no declaration under section 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 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 punishment and, therefore, the concept of serving out which pertains to punitive jurisprudence cannot be imported into the realm of preventive 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 j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of detention. Shri Jethmalani has submitted that in view of the direction of the larger Bench of this Court, the ratio laid down in Amritlal 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 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 evolution of changing attitudes of the society towards crime and criminals. As a consequence of the introduction of parole into the penal system, all fixed-term sentences of imprisonment of above 18 months are subject to release on licence, that is, parole after a third of the period of sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order of detention was patently 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 deal with the merits without any delay rather than direct release of the detenu on bail. Again, in State of Uttar Pradesh v. Jairam Ors., [1982] 1 SCC 176 a three-Judge Bench speaking through Chandrachud, CJ., referred to Rambalak Singh's case and set aside the order passed by the learned Single Judge of the High Court admitting the detenu to bail on the ground that it was an improper exercise of jurisdiction. As to grant of parole, it is worthy of note that in none of the cases this Court made a direction under Article 32 of the Constitution for grant of parole to the detenu but left it to the executive to consider whether it should make an order in terms of the relevant provision for temporary release of the person detained as under section 12 of the COFEPOSA, in the facts and circumstances of a particular case. In Samir Chatterjee v. State of West Bengal, [1975] 1 SCC 801, the Court set aside the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod 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 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 Camprehensive 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 period prescribed by the section. The period during which the detenu is on parole cannot be said to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two purposes:- "(1) To prevent the person concerned from engaging himself in an activity prejudicial to the conservation of foreign exchange and also preventing him from smuggling activities and thereby to render him immobile for the period considered necessary by the detaining authority so that during that period the society is protected from such prejudicial activities on the part of the detenu. And (2) In order to break the links between the person so engaged and the source of such activity and from his associates engaged in that activity or to break the continuity of such prejudicial activities so that it would become difficult, if not impossible, for him to resume the activities." Release of a detenu on parole after an order of detention has been made and the detenu lodged in custody for achieving one or the other of the aforesaid legislative objects is thus contrary to the purpose of 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 was inserted by Amending Act 39 of 1975 with effect from 1.7.1975 reads:"Notwithstanding anything contained i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 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 direction 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 contrary. 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. Ismail Juma Ors., [1982] 1 SCR 1014. In 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 Chan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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