2000 Supreme(SC) 378

2000(4) Supreme 682
Supreme Court of India
(Under Art. 32 of the Constitution of India)
Dr. A.S. Anand, CJI., G.T. Nanavati, K.T. Thomas, D.P. Wadhwa & S. Rajendra Babu, JJ.
Sunil Fulchand Shah etc. —Petitioners
versus
Union of India & Ors. —Respondents
Writ Petition (Crl.) No. 248 of 1988
With
W.P. (Crl.) No. 831 of 1990 and
SLP (Crl.) No. 1492 of 1988
Decided on 16-2-2000
Counsel for the Parties :
For the Appearing Parties : Soli J. Sorabjee, Attorney General, H.N. Salve, Solicitor General Kuldeep Singh Additional Solicitor General, U.R. Lalit, T.U. Mehta, M.G. Karmali, Sr. Advocates, Vineet Kumar, J.B. Patel, Mrs. H. Wahi, M.N. Shroff, A. Subba Rao, P. Parmeshwaran, C.V.S. Rao, K.M.M. Khan, Wasim A. Qadri, B.K. Prasad, Ms. Sunita Hazarika, (Ms. S. Bagga, K.R. Nagaraja) Advocates (NP), Tripurari Ray, Herjinder Singh, Ms. Priya Saxe­na, Mrs. Priya Saxe­na, Pramit ­Saxe­na, S.V. Deshpande, Ms. Kamini Jaiswal, Adhyaru Yashank P., Anip Sachthey Ms. Anu Sawhney, R.P. Wadhwani, (S.V. Deshpande) Advocate (NP), Rajiv Dutta, Ms. Enakshi Kulshrestha, Kapil Sharma, Advocates.

Important Points
1. Period of detention u/s 10 of COFEPOSA is to be computed from the date of actual detention and not from the date of the order of detention.
2. 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.
3. The Courts cannot, generally speaking, exercise the power to grant temporary release to detenus, on parole, in cases cov­ered by COFEPOSA during the period an order of detention is in force because of the express prohibition contained in Clause (6) of Section 12.
4. Parole does not interrupt the period of detention and, thus that period needs to be counted towards the total period of detention unless the terms for grant of parole, rules or instruc­tions, prescribe otherwise.
5. In case Supreme Court sets aside High Court’s order quashing detention order, detenu need not be sent back to undergo remain­ing period of detention after long lapse of time unless there still exists a proximate temporal nexus between period of deten­tion and period of detention indicated in detention order.

Headnote:(i) COFEPOSA—Section 10 r/w 12—Preventive detention—Period of—Computation of—Period of detention specified in detention order will start running from date of actual detention and not from date of detention order—Parole can be granted by way of temporary release as contemplated u/s 12(1) or 12(1A) by Govern­ment or its functionaries—Court cannot grant temporary release on parole in cases covered by COFEPOSA —Jurisdiction of Court under Articles 226, 32, 136 or 142 not affected by bar u/s 12 where request of detenu unjustifiably refused—Release on parole does not interrupt period of detention—Period of parole needs to be counted towards total detention period—Parole does not keep period of detention in a state of suspended animation—Period of detention would not stand automatically extended by any period of parole granted unless parole order or, rule or instruction speci­fically indicates as a term and condition of parole, to the contrary —Effect of Supreme Court setting aside order of High Court quashing detention order—Detenu need not be sent back to undergo remaining period of detention after long lapse of time ­unless there still exists a proximate temporal nexus between period of detention and period of detention indicated in deten­tion order—If long time has not lapsed and detention period fixed had not expired detenu may be sent back to undergo balance period of detention.

       Per Dr. A.S. Anand, CJI : (K.T. Thomas, D.P. Wadhwa & S. Rajendra Babu, JJ. agreeing) :

       (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 Section 10 of COFEPOSA prescribes not only the maximum period of detention but also the method of computation of that period and on a plain reading of the section, the period of detention is to be computed from the date of actual detention and not from the date of the order of detention;

       (3) That 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. 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 conditions;

       (4) That the Courts cannot, generally speaking, exercise the power to grant temporary release to detenus, on parole, in cases cov­ered by COFEPOSA during the period an order of detention is in force because of the express prohibition contained in Clause (6) of Section 12. The bar of judicial intervention to direct tempo­rary release of a detenu would not, however, effect the jurisdic­tion of the High Courts under Article 226 of the Constitution or of this Court under Articles 32, 136 or 142 of the Constitution to direct the temporary release of the detenu, where request of the detenu to be released on parole for a specified reason and/or for a specified period, has been, in the opinion of the Court, unjus­tifiably refused or where in the interest of justice such an order of temporary release is required to be made. That jurisdic­tion, however, has to be sparingly exer­cised by the Court and even when it is exercised, it is appropriate that the court leaves it to the administrative or jail authorities to prescribe the conditions and terms on which parole is to be availed of by the detenu;

       (5) That parole does not interrupt the period of detention and, thus that period needs to be counted towards the total period of detention unless the terms for grant of parole, rules or instruc­tions, prescribe otherwise;

       (6) The quashing of an order of detention by the High Court brings to an end such an order and if an appeal is allowed against the order of the High Court, the question whether or not the detenu should be made to surrender to undergo the 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 should be excluded while computing the total period of detention as indicated in the order of detention though normally the period during which the detenu was free on the basis of such an erroneous 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. (Para 19)

       Per G.T. Nanavati, J.—

       It is true that Article 22(7)(b) has been held permissive and, therefore, there can be a prevention 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 and anti social activities, the nature of action permitted is preventive and not punitive. The distinction between preven­tion detention and punitive detention has now been well recogn­ized. Preventive detention is qualitatively different from puni­tive detention/sentence. A person is preventively detained with­out a trial but punitive detention is after a regular trial and when he is found guilty of having committed an offence. The basis of preventive detention is suspicion and its justification nis necessity. The basis of sentence is the verdict of the Court after a regular trial. When a person is preventively detained his detention can be justified only so long as it is found necessary. When a person is sentenced to suffer imprisonment it is intended that the person so sentenced shall remain in prison for the period stated in the order imposing sentence. The term specified in the order of sentence is intended to be actual period of imrisonment. On the other hand, preventive detention being an action of immediate necessity has to be immediate and continuous if it is to be effective and the purpose of detention is to be achieved. The safeguards available to a person against whom an order of detention has been passed are limited and, therefore, the Courts have always held that all the procedural safeguards provided by the law should be strictly complied with. Any default in maintaining the time limit has been regarded as having the effect of rendering the detention order or the continued deten­tion, as the case may be, illegal. The justification for preven­tive detention being necessity a person can be detained only so long as it is found necessary to detain him. If his detention is found unnecessary, even during the maximum period permissible under the law then he has to be released from detention forth­with. It is really in this context that Section 10 and particu­larly the words ‘may be detained’ shall have to be interpreted. (Para 30)

       The intention of the legislature that once detention starts it must run continuously and that the power to release on bail or otherwise has been taken away as it does not want the period of detention to be curtailed in any manner. I, therefore, see no justification for taking the view that the words ‘may be detained’ in Section 10 contemplated actual detention for the maximum period. If the word ‘detain’ is interpreted to mean actually detained for the maximum period, then it will partake the character of punitive detention and not preventive detention. (Para 31)

       A temporary release under Section 12 of the person detained does not change his status as his freedom and liberty are not fully 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. The Act contemplates continuous period of detention. If in spite of that any interruption is made in the running of that period then the only effect it can have is to curtail the period of detention. Taking the contrary view that the detenu must serve out the balance period of detention would render the detention punitive after the period of one or two years, as the case may be, counted from the date of detention comes to an ends. If the period of detention is interrupted either by an order of provisional release made under Section 12 or by an order of the Court, then the maximum period of detention to that extent gets curtailed and neither the period of parole nor the period during which the detenu was released pursuant to the order of the court can be excluded while computing the maxi­mum period of detention. (Paras 32 & 33)

       (ii) Bail—Parole—Distinction between—Parole is a form of temporary release from custody, which does not suspend sentence or period of detention.

       Bail and parole have different connotations in law. Bail is well understood in criminal jurisprudence and Chapter XXXIII of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The ­effect of granting bail is to release the ­ac­cused from internment though the court would still retain con­structive control over him through the sureties. In case the ­accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word ‘Bail’ is surety. ‘Parole’, however, has a different connotation than bail even though the substantial legal effect of both bail and parole may be the release of a person from detention or custody. In this country, there are no statutory provisions dealing with the question of grant of parole. The Code of Criminal Proce­dure does not contain any provision for grant of parole. By administrative instructions, however, rules have been framed in various States, regulating the grant of parole. Thus, the action for grant of parole is generally speaking an administration action. ‘Parole’ is a form of “temporary re­lease” from custody, which does not suspend the sentence or the period of detention, but provides conditional release from custo­dy and changes the mode of undergoing the sentence. (Paras 10 to 13)