Judgement

RANGANATH MISRA, J. :- Petitioners husband, Shital Kumar, was detained by an order passed by the Additional Secretary to the Government of India, Ministry of Finance, Department of Revenue, dated February 28, 1986, made in exercise of powers vested under S. 3(l) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA). The petitioner made an application to this Court under Art. 32 in Writ Petn. (Cri.) No. 292 of 1986* challenging that order of detention. In the earlier writ application, on 15th of May, 1986, the learned Vacation Judge of this Court made an order for the release of the detenu on parole on the following terms (at p. 1385) :-

* Reported in AIR 1987 SC 1383

"The detenu is released on parole until further orders on the condition that he will report to the Directorate of Revenue, New Delhi, every day and the Directorate will be at liberty to direct him to explain his conduct during this time........... 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 their notice which requires the revocation of the parole."

On 3rd March, 1987, the writ petition was listed for hearing before the Bench consisting of both of us. In the writ petition, several contentions had been raised but Mr. Jethmalani, learned counsel for the petitioner confined his submission to only one aspect, namely, that the period of parole, that is, from 15th May, 1986, till February 22, 1987, should not be added to the period of detention specified in the impugned order under Section 3 (1) of the COFEPOSA and the period of one year from the date of detention having expired on February 20, 1987, the impugned order has lapsed and the detenu became entitled to be freed from the impugned order of detention. That point was examined at length and by the judgment of. this court delivered on 22nd. April, 1987 in Poonam Lata v. M. L. Wadhawan, AIR 1987 SC 1383 the writ petition was dismissed by saying (Para 13) :-

"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 Sect ion 3 of the Act." In paragraph 14 of the judgment, it was further observed : -

"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-section (1 ) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, must fail. The writ petition is accordingly dismissed. There shall be no order as to costs. We direct that the petitioner shall surrender to custody to undergo remaining period of detention. We give the detenu 10 days time to comply with this direction failing which a non-bailable warrant for his arrest shall issue."

2. This writ petition was thereafter filed on 27th of April, 1987. In paragraph 2 of the petition, with reference to the earlier writ petition, it was averred :-

"Arguments were advanced by the counsel for the petitioner only to the one point and it was clearly stated by the senior counsel, Shri Ram Jethmalani, who appeared in the hearing that he had a strong, almost unanswerable case on merits but he was very keen to have the question of exclusion of the parole period decided since it arises squarely in this case. It would have been a breach of professional duty on the part of the counsel not to raise those points against the validity of the detention order on which the court had prima facie issued notice. Shri Ram Jethmalani, senior counsel, did not give up the other points in the said writ petition. However, the Honble Court has dismissed the said writ petition on 22-4-1987. Though the Honble