SUNIL FULCHAND SHAH Vs. UNION OF INDIA

JUDGEMENT

(1.) A short but a question of law of general importance that arises for consideration in this case is whether the period of detention is a fixed period running from the date specified in the detention order and ending with the expiry of that period or the period is automatically extended by any period of parole granted to the detenu.

(2.) The Gujarat High Court allowed the writ petition of Sunil Fulchand Shah [petitioner in S.L.P. (Cri.) No. 1492 of 1988] partly and quashed the notification under Sec. 9(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short referred to as the COFEPOSA Act), but upheld the order of detention and directed that the detenu shall have to undergo detention for a period of one year from the date of his arrest in pursuance of the order of detention, excluding the period during which he was out as a result of its earlier order quashing the detention. he has, therefore, filed S.L.P. (Criminal) No. 1492 of 1988 challenging the said direction. In Writ Petition (Criminal) No. 248 of 1988 filed by him under Art. 32 of the Constitution he has challenged his continued detention as illegal on the ground that the one-year period which had started running from 4-7-1986, the date on which he was detained pursuant to the detention order, expired on 3-7-1987 and his detention thereafter, is without any authority of law. Sanjeev Kumar Agarwal is the petitioner in Writ Petition (Criminal) No. 831 of 1990. He has challenged the order passed by the Central Government rejecting the representation made by his wife for his release on 23-7-1990 on completion of one year from the date of his detention and not to extend his detention till 20-12-1990 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 [Sunil Fulchand Shah v. Union of India, reported in 1989 (3) SCC 236], ordered that as the matter is of great public importance, these cases may be referred to a Bench of five Honble Judges. Two learned Judges constituting the Bench (Pathak, C.J. 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 : [1981 GLR 1278 (SC)] : 1982 (1) SCR 740, State of Gujarat v. Mohd. Ismail Jumma, 1981 (4) SCC 609 : [1982 (1) GLR 113 (SC)] : 1982 (1) SCR 1014, Poonam Lata v. M. L. Wadhawan, 1987 (3) SCC 347 : AIR 1987 SC 1383 and Pushpadevi M. Jatia v. M. L. Wadhawan, 1987 (3) SCC 367 : AIR 1987 SC 1748, 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 :

(3.) Section 3 of the COFEPOSA Act confers power on the Central Government, State Government and their officers if specially empowered, to make an order for detention against a person engaged in certain prejudicial activities specified in that Section. Section 10 prescribes the maximum period for detention. It provides that the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of Sec. 9 do not apply, shall be one year from the date of detention and the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of Sec. 9 apply, shall be two years from the date of detention. Section 11 of the Act confers powers on the State Government and the Central Government to revoke or modify the detention order. Sub-sec. (2) of that section, however, provides that the revocation of a detention order shall not bar the making of another detention order under Sec. 3 against the same person. Section 12 authorises the Government to release the person detained for any specified period either without conditions or upon such conditions as that person accepts. The Government has the power under that Sec. to cancel his release. The person so ordered to be released may be required to enter into a bond with sureties for the due observance of the conditions on which he is released. If the person so released fails without sufficient cause to surrender himself he becomes liable to be punished with imprisonment for a term which may extend to two years, or with fine, or with both. Notwithstanding anything contained in any other law, Sec. 12 prohibits release of a person against whom a detention order is made, whether on bail or bail-bond or otherwise.