Docid # IndLawLib/278372

(2000) AIR(SCW) 582 : (2000) AIR(SC) 1023 : (2000) 1 AllCrlRulings 585 : (2000) 1 AllCrlRulings 585 :
(2000) ALLMR(Cri) 745 : (2000) 2 BLJud 557 : (2000) CriLJ 1444 : (2000) CriLR 281 : (2000) 3 Crimes 44 :
(2000) 1 CTC 694 : (2000) 2 ECrC 436 : (2000) 68 ExCusC 209 : (2000) 2 GLR 1532 : (2000) 2 GujLH 212 :
(2000) 2 JT 230 : (2000) 2 KLT(SN) 26 : (2000) 2 PLJR 179 : (2000) 2 RCR(Criminal) 176 : (2000) 2 RLW
213 : (2000) 1 SCALE 660 : (2000) 3 SCC 409 : (2000) SCC(Cri) 659 : (2000) 1 SCR 945 : (2000) 2 SLT 246
: (2000) 4 Supreme 682
SUPREME COURT OF INDIA
FULL BENCH

SUNIL FULCHAND SHAH — Appellant

Vs.

UNION OF INDIA AND OTHERS — Respondent

( Before : A. S. Anand, C.J.; S. Rajendra Babu, J; K. T. Thomas, J; G. T. Nanavati, J; D. P. Wadhwa, J )
Writ Petition (Criminal) No. 248 of 1988 (with W.P. (Criminal) No. 831-1990 and SLP (Criminal) No. 1492 of 1988
Decided on : 16-02-2000

Administration of Justice Act, 1960 - Section 15(4), Section 5(1)

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section
10, Section 12, Section 3, Section 8, Section 9(1)
Constitution of India, 1950 - Article 136, Article 142, Article 21, Article 22, Article 246, Article 32
Criminal Procedure Code, 1973 (CrPC) - Section 389, Section 426

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act , 1974-Section 10 -

Preventive detention - Period of detention - Computation of - It has to be computed from date of
actual detention and not from date of order of detention.

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act , 1974-Section 10,
12 - Preventive detention - Maximum period of detention - It has to be computed by including period
of parole, unless terms of grant of parole or rules or instructions prescribe otherwise.

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act , 1974-Section

12(1) and 12(1-A) - Parole - Parole can be granted to detenu by way of temporary release - Detenue
is required to approach Govt. for grant of parole - In case of denial of parole to detenu - High Court
under Art. 226 and Supreme Court under Arts. 32, 136 and 142 can direct temporary release of
detenu.

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections
12(1) and 12(1-A) - Parole - Can be granted to detenu by way of temporary release - Detenu is
required to approach Government for grant of parole - In case of denial of parole to detenu - High
Court under Art. 226 and Supreme Court under Art. 32, 136 and 142 can direct temporary release of
detenu.

Parole, stricto sensu may be granted by way of a temporary release as contemplated by Section
12(1) or 12(1-A) 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.

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, affect 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.
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections 10,
12 - Preventive detention - Maximum period of detention - It has to be including in period of parole,
unless terms of grant of parole or rules or instructions prescribe otherwise.

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 10 -
Preventive detention - Quashing by High Court - Order of High Court set aside by Supreme Court -
Detenu need not be sent to jail for remaining period of detention after long lapse of time.

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 10 -
Preventive detention - Period of detention - Computation of - It has to be computed from date of
actual detention and not from date of order of detention.
Counsel for Appearing Parties
Soli J. Sorabjee, Attorney General, H.N. Salve, Solicitor General, Kuldeep Singh, Addl. Solicitor General, U.R. Lalit, T.U.
Mehta, M.G. Karmali, Vineet Kumar, J.B. Patel, H. Wahi, M.N. Shroff, A. Subba Rao, P. Parmeshwaran, C.V.S. Rao,
K.M.M. Khan, Wasim A. Quadri, B.K. Prasad, Sumita Hazarika, S. Bagga, K.R. Nagaraja, Tripurari Ray, Harjinder Singh,
Priya Saxena, Pramit Saxena, S.V. Deshpande, Kamini Jaiswal, Adhyaru Yashank, P. Anip Sachthey, Anu Sawhney, R.P.
Wadhwani, S.V. Deshpande, Rajiv Dutta, Enakshi Kulshrestha and Kapil Sharma, for the Appellant;

Cases Referred

Poonam Lata Vs. M.L. Wadhawan and Others, AIR 1987 SC 1383 : (1988) 63 CompCas 50 : (1987) CriLJ
1924 : (1987) 12 ECC 346 : (1987) 30 ELT 3 : (1987) 2 JT 204 : (1987) 1 SCALE 849 : (1987) 3 SCC 347 :
(1987) 2 SCR 1123
Fagu Shaw and Others Vs. The State of West Bengal, AIR 1974 SC 613 : (1974) CriLJ 486 : (1974) 4 SCC
152 : (1974) SCC(Cri) 316 : (1974) 2 SCR 832
State of Haryana and Others Vs. Mohinder Singh, AIR 2000 SC 890 : (2000) CriLJ 1408 : (2000) 1 JT 629
: (2000) 1 SCALE 465 : (2000) 3 SCC 394 : (2000) 1 SCR 698 : (2000) 1 UJ 463 : (2000) AIRSCW 478 :
(2000) 1 Supreme 538
State of Gujarat Vs. Adam Kasam Bhaya, AIR 1981 SC 2005 : (1981) CriLJ 1686 : (1981) 3 SCALE 1563 :
(1981) 4 SCC 216 : (1981) SCC(Cri) 823 : (1982) 1 SCR 740 : (1981) 13 UJ 853
Sunil Fulchand Shah Vs. Union of India (UOI) and Others, AIR 1989 SC 1529 : (1989) CriLJ 1489 : (1989)
2 Crimes 188 : (1989) 23 ECR 5 : (1989) 42 ELT 337 : (1989) 2 JT 394 : (1989) 1 SCALE 1178 : (1989) 3
SCC 236 : (1989) 2 SCR 867
State of Gujarat Vs. Mohd. Ismail Jumma and Others, AIR 1982 SC 683(1) : (1982) CriLJ 421 : (1981) 3
SCALE 1645 : (1981) 4 SCC 609 : (1982) 1 SCR 1014

JUDGMENT

A.S. Anand, C.J.I. (K.T. Thomas, D.P. Wadhwa and S. Rajendra Babu, JJ. agreeing)

1. I have had the advantage of going through the judgment of our learned 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.
2. It would be appropriate to first refer to the order of reference made by a 2-Judge Bench on 1st of May, 1989
(reported in Sunil Fulchand Shah Vs. Union of India (UOI) and Others, . That order reads thus:

This writ petition under Article 32 of the Constitution and the SLP under Article 136 of the Constitution arises
out of proceedings for preventive detention taken under the Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1974. One of the substantial points which arises in these cases 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. In
case where the High Court allows a habeas corpus petition and directs the detenu to be released and in
consequence the detenu is set free, and thereafter an appeal filed in this Court results in the setting aside of
the order of the High Court, is it open to this Court to direct the arrest and detention of the detenu if
meanwhile the original period of detention intended in the detention order has expired? Four decisions of this
Court have been placed before us in support of the contention 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 an erroneous judgment of a High
Court and the detenu is set free. Those cases are State of Gujarat Vs. Adam Kasam Bhaya, , State of Gujarat
Vs. Mohd. Ismail Jumma and Others, ; Poonam Lata Vs. M.L. Wadhawan and Others, and Pushpadevi M. Jatia
v. M.L, Wadhawan : 1987CriLJ1888 . We find some difficulty in accepting the view taken by the learned Judges
of this Court who decided those cases. It seems to us prima facie that what is important is that we are
concerned with cases of preventive detention, cases where the detaining authority is required to apply its
mind and decide, whether, and if so for how long, a person should be detained. It is preventive detention and
not punitive detention. Preventive detention invariably runs from the date specified in the detention order. In
the case of punitive detention, no date is ordinarily specified from which the detention will commence, and all
that is mentioned is the period of detention. In case of preventive detention the detaining authority applies its
subjective judgment to the material before it and determines what should be the period 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 the 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 a 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 Section 5(1) and Section 15(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.

3. From the above order of reference, essentially the substantial questions which arise for our consideration
are:

Firstly, whether the period of detention is a fixed period running from the dates 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. Secondly, in a case where the High Court allows a habeas corpus petition and directs a
detenu to be released and in consequence the detenu is set free and thereafter on appeal the erroneous
decision of the High Court is reversed, is it open to this Court to direct the arrest and detention of the detenu,
to undergo detention for the period which fell short of the original period of detention intended in the
detention order on account of the erroneous High Court order.

4. Brother Nanavati, J. has dealt with various judgments referred to in the order of reference and analysed
them. I agree that the judgments in Harish Makhija v. State of U.P., (1987) 3 SCC 432; Poonam Lata Vs. M.L.
Wadhawan and Others, do not lay down the correct law because the propositions of law laid down in those
judgments, which has been extracted by brother Nanavati, J. have been very widely stated. 1 do not intend to
deal with those judgments and would like to address myself to the questions as noticed above.

5. 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. The period of one or two
years, as the case may be, as mentioned in Section 10 will run from the date of the actual detention and not
from the date of the order of detention. Any other interpretation would frustrate the object of an order of
detention and a clever person may abscond for the entire period mentioned in the order of detention and
thereby render the order of detention useless claiming on being apprehended that the period has already
expired. The view expressed in State of Gujarat Vs. Adam Kasam Bhaya, and State of Gujarat Vs. Mohd. Ismail
Jumma and Others, in this behalf lays down the correct law and I adopt that reasoning and hold that the
period of detention specified in the order of detention would commence not from the date of the order but
from the date of actual detention. That period is the maximum period of detention. 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 State of Gujarat Vs. Adam Kasam Bhaya, viz. "if he has served a part of the period of
detention, he will have to serve out the balance" separately, in the later part of this order.

6. 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 restrictions placed on a person to preventively detain must, consistently
with the effectiveness of detention, be minimal. 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. This Court, as the guardian of the Constitution, though not the only guardian, has zealously
attempted to preserve and protect the liberty of a citizen. 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.

7. It would be relevant at this stage to notice the provisions of Articles 22(4)(a) and (7) of the Constitution.

Article 22(4)(a) of the Constitution provides as follows:

22(4) (a) - an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as,
Judges of a High Court has reported before the expiration of the said period of three months that there is in its
opinion sufficient cause for such detention:

Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum
period prescribed by any law made by Parliament under Sub-clause (b) of Clause (7).

Clause (7) of Article 22 says:

Clause (7) - Parliament may by law prescribe -

(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a
period longer than three months under any law providing for preventive detention without obtaining the
opinion of an Advisory Board In accordance with the provisions of Sub-clause (a) of Clause (4);

(b) the maximum period for which any person may in any class or classes of cases be detained under any law
providing for preventive detention; and

(c) the procedure to be followed by an Advisory Board in an inquiry under Sub-clause (a) of Clause (4).

8. A combined reading of Clauses (4) and (7) makes it clear that if a law made by Parliament or the State
Legislature authorises the detention of a person for a period not exceeding three months, it does not have to
satisfy any other constitutional requirement except that it must be within the legislative competence of the
Parliament or the State Legislature, as the case may be. {Article 246, Entry 9, List I and Entry 3, List III, of
Seventh Schedule). The Constitution itself 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
and Others Vs. The State of West Bengal, and authoritatively answered. Since, I respectfully agree with the
answer, I need not detain myself to deal with that issue any further.
9. To answer the question whether the period of detention would stand automatically extended by any period
of parole granted to a detenu, we need to examine the concept and effect of parole more particularly in a
preventive detention case.

10. Bail and parole have different connotations in law. Bail is well understood in criminal jurisprudence and
Chapter XXXIII of the CrPC 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. In Halsbury's Laws of England (Halsbury's Laws of England, 4th Ed., Vol. 11, Para 166), the
following observation succinctly brings out the effect of bail:

The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody
of law and to entrust him to the custody or his sureties who are bound to produce him to appear at his trial at
a specified time and place. The sureties may seize their principal at any time and may discharge themselves
by handling him over to the custody of law and he will then be imprisoned.

11. '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. The dictionary meaning of 'Parole' is:

THE CONCISE OXFORD DICTIONARY - NEW EDITION

The release of a prisoner temporarily for a special purpose or completely before the expiry of a sentence, on
the promise of good behavior; such a promise, a word of honour.

BLACK'S LAW DICTIONARY - SIXTH EDITION

Release from jail, prison or other confinement after actually serving part of sentence; conditional release from
imprisonment which entitles parolee to serve remainder of his term outside confines of an institution, if he
satisfactorily complies with all terms and conditions provided in parole order.

According to The law Lexicon [P. Ramanatha Aiyar's The Law Lexicon with Legal Maxims, Latin Terms and
Words and 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 (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 sentnece. People ex. rel. Rainonev. Murphy, 135 NE 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 SW 2d 1000, 1002.

A 'parole' is not a 'suspension of sentence,' but is a substitution, 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. Madigari C.A. Irid, 211
F. 2d904, 906.

A 'parole' does not suspend or curtail the sentence originally imposed by the Court as contrasted with a
'commutation of sentence' which actually modifies it.

12. In this country, there are no statutory provisions dealing with the question of grant of parole. The CrPC
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 administrative action. The distinction between grant of bail and parole has been clearly brought
out in the judgment of this Court in State of Haryana and Others Vs. Mohinder Singh, to which one of us
(Wadhwa, J.) was a party. That distinction is explicit and I respectfully agree with that distinction.
13. Thus, it is seen that '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. COFEPOSA does not contain any provision authorising the grant of parole by judicial
intervention. As a matter of fact, Section 12 of COFEPOSA, which enables the administration to grant
temporary release of a detained person expressly lays down that the Government may direct the release of a
detenu for any specified period either without conditions or upon such conditions as may be specified in the
order granting parole, which the parolee accepts. Sub-section (6) of Section 12 lays down:

Section 12(6) - Notwithstanding anything contained in any other law and save as otherwise provided in this
section, no person against whom a detention order made under this Act is in force shall be released whether
on bail or bail bond or otherwise.

14. Section 12(6) starts with a non obstante clause and mandates that no person against whom a detention
order made under COFEPOSA is in force shall be released whether on bail or bail bond or otherwise. The
prohibition is significant and has a purpose to serve. Since, the object of preventive detention is to keep a
person out of mischief in the interest of the security of the State or public order, judicial intervention to release
the detenu during the period an order of detention is in force has to be minimal. u/s 12(1) or 12(1-A), it is for
the State to see whether the detenu 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.

15. Thus, parole, stricto sensu may be granted by way of a temporary release as contemplated by Section
12(1) or 12(1-A) 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
conditions. 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. Temporary release of a detenu can only be ordered
by the Government or an officer subordinate to the Government, whether Central or State. I must, however, add
that the bar of judicial intervention to direct temporary release of a detenu would not affect the jurisdiction of
the High Courts under Article 226 of the Constitution or of this Court under Article 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.

16. Since, release on parole is only a temporary arrangement by which a detenu is released for a temporary
fixed period to meet certain situations, it does not interrupt the period of detention and, thus, needs to be
counted towards the total period of detention unless the rules, instructions or terms for grant of parole,
prescribe otherwise. The period during which parole is availed of is not aimed to extend the outer limit of the
maximum period of detention indicated in the order of detention. The period during which a detenu has been
out of custody on temporary release on parole, unless otherwise prescribed by the order granting parole, or by
rules or instructions, has to be included as a part of the total period of detention because of the very nature of
parole. An order made u/s 12 of temporary release of a detenu on parole does not bring the detention to an
end for any period - it does not interrupt the period of detention - it only changes the mode of detention by
restraining the movement of the detenu in accordance with the conditions prescribed in the order of parole.
The detenu is not a free man while out on 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 to any time, for breach of condition, to be returned to
custody. Thus, cases which are covered by Section 2 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 detenu has been at liberty, cannot be counted towards period of detention
while computing the total period of detention and that period has to be ex eluded while computing the period
of detention. The answer to the question, therefore, is that the period of detention would not stand
automatically extended by any period of parole granted to the detenu unless the order of parole or rules or
instructions specifically indicates as a term and condition of parole, to the contrary. The period during which
the detenu is on parole, therefore, requires to be counted towards the total period of detention.

17. Coming now to the next question and the other observations made in State of Gujarat Vs. Adam Kasam
Bhaya, viz., "if he has served apart of the period of detention, he will have to serve out the balance."

18. 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 quest ion 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 prescribed when 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. Where, however, long time has not lapsed or the period of detention
Initially fixed in the order of detention has also 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.

19. 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 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 sensu may be granted by way of a temporary release as contemplated by Section 12(1)
or 12(1-A) 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 eases 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, affect 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 lire statute.

20. The above is not a summary of the judgment but shall have to be read along with the judgment.

21. Consequently, the writ petitions are allowed and the SLP is disposed of in terms of the above order.

G.T. Nanavati, J.

22. 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.

23. The Gujarat High Court allowed the writ petition of Sunil Fulehand Shah (Petitioner in SLP (Cri.) No. 1492
of 1988) partly and quashed the notification u/s 9(1) of the Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1974 (for short refer to as '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 SLP (Criminal) No. 1492 of 1988 challenging the said
direction. In Writ Petition (Criminal) No. 248 of 1988 filed by him under Article 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 SLP 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 maybe referred to a Bench of five Hon'ble
Judges. Two learned Judges constituting the Bench (Pathak, CJI and M.N. Venkatachallah, J) referred to the
four decisions of this Court in State of Gujarat Vs. Adam Kasam Bhaya, ; State of Gujarat Vs. Mohd. Ismail
Jumma and Others, ; Poonam Lata Vs. M.L. Wadhawan and Others, ; and Pushpadevi M. Jatia v. M.L.
Wadhawan : 1987CriLJ1888 , 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 within the total period of detention and not outside it." The
third learned Judge (L.M. Sharma, J.) agreed with the views expressed in Adam Kasam Bhaya's case and the
other three cases referred to above; yet, he also agreed that in view of the great public importance of the point
involved these cases deserve to be heard by a Bench of five Hon'ble Judges. As the question raised in the writ
petition filed by Sanjeev Kumar is also the same, it has been ordered to be heard with Writ Petition (Criminal)
No. 248 of 1988 filed by Sunil. That is how these three cases are placed for hearing before a five Judge Bench
of this Court.

24. 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 Section 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 Section 9
apply, shall be two years from the date of detention. Section 11 of the Act confers power on the State
Government and the Central Government to revoke or modify the detention order. Sub-section (2) of that
Section however, provides that the revocation of a detention order shall not bar the making of another
detention order u/s 3 against the same person. Section 12 authorises the Government to release the person
detained for any specified period either without such conditions as that person accepts. The Government has
the power under that section 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, Section 12 prohibits release of a person against whom a detention order is made,
whether on bail or bail bond or otherwise.

25. 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 u/s 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 not from the date of the detention order. Though the Act permits revocation of the detention
order arid 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.

26. 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 State of Gujarat Vs. Adam Kasam Bhaya, . In that case the detenu was detained
under COFEPOSA pursuant to order of detention dated May 7,1979. The High Court of Gujarat quashed the
order of detention. The State preferred an appeal to this Court and when It came up for hearing on September
15, 1981 a preliminary objection was raised on behalf of the detenu that, as the maximum period of detention
permitted u/s 10 had expired, the appeal had become Infructuous. Dealing that objection this Court held as
under:

In our opinion, the submission has no force. In Section 10, both In the first, and the second part of the s jetton,
it has been expressly mentioned that the detention will be for a period of one year or two years, as the case
maybe, from the date of detention, and not from the date of the order of detention. If the submission of
learned Counsel be accepted, two unintended results follow:

(1) a person against whom an order of detention is made u/s 3 of the Act can successfully abscond till the
expiry of the period and altogether avoid detention; and (2) even if the period of detention is Interrupted by the
wrong judgment of a High Court, he gets the benefit of the Invalid order which he should not. The period of
one or two years, as the case may be, as mentioned In Section 10 will run from the date of his actual
detention, and not from the date of the order of detention. If he has served a part of the period of detention, he
will have to serve out the balance. The preliminary objection is overruled.

A similar preliminary objection was raised In the case of Mohd. Ismail Jumma's case AIR 1982 SC 683 : 1982
Cri LJ 421 and following the decision in Adam Kasam Bhaya It was overruled.

27. In Poonam Lata Vs. M.L. Wadhawan and Others, a contention was raised that the period of parole cannot
be added to the period of detention. The reasons put forward in support of this contention were: (1) as there is
no provision authorising interruption of running of the period of detention, release on parole does not bring
about any change in the situation; (2) preventive detention is 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 prevention (preventive) detention and (3) even though grant of parole to a detenu amounts to a
provisional release from confinement; yet the detenu continues to be under restraint as he would still be
subject to restrictions Imposed on free 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 CrPC 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 u/s 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 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 period during which he has been held in custody pursuant to the order of his detention,
for in such a case he was not in actual custody. The order of detention prescribes the place where the detenu
is to be detained. Parole brings him out of confinement from that place. Whatever may be the terms arid
conditions imposed for grant of parole, detention as contemplated by the Act is interrupted when release on
parole is obtained. The position would be well met by the appropriate answer to the question "how long has
the detenu been in actual custody pursuant to the order?" According to its plain construction, the purpose and
object of Section 10 is to prescribe not only for the maximum period but also the method by which the period
is to be computed. The computation has to commence from the date on which the detenu is taken into actual
custody but If it is interrupted by an order of parole, the detention would not continue when parole operates
arid until the detenu is put back into custody. The running of the period recommences then and a total period
of one year has to be counted by putting the different period of actual detention together. We see no force in
Shri Jethmalanl's submission that the period during which the detenu was on parole has to be taken into
consideration in computing the maximum period of detention authorised by Section 10 of the Act.

27A. In Pushpa Devi : 1987CriLJ1888 this Court reiterated the same view with some more elaboration. With
respect to the first reason this Court observed:

It will not be out of place to point out here that in spite of the Criminal Procedure Code providing for release of
the convicted offenders on probation of good conduct, it expressly provides, when it comes to a question of
giving set off to a convicted person in the period of sentence, that only the actual pre-trial detention period
should count for set off and not the period of bail even if bail had been granted subject to stringent conditions.
In contract, insofar as preventive detentions under the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974, are concerned, 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 u/s 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 CrPC, 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 as reporting daily or periodically before a des ignited authority, residing in a particular
town or city, travelling within prescribed limits alone and not going beyond etc. will riot prevent the detenu
from moving and acting as a free agent during the rest of the time or within the circumscribed limits of travel
and having full scope and opportunity to meet people of his choice and have dealings with them, to
correspond with one and all and to have easy and effective communication with whomsoever he likes through
telephone, telex etc. Due to the spectacular achievements in modern communication system, a detenu,
contacts with all his relations, friends and confederates in any part of the country or even any part of the world
and thereby pursue his unlawful activities if so inclined. It will, therefore, be futile to contend that the period of
parole of a detenu has all the trippings of actual detention in prison and as such both the periods should find a
natural merger and they stand denuded of their distinctive characteristics. Any view of the contrary would not
only be opposed to realities but would defeat the very purpose of preventive detention and would also lead to
making a mockery of the prevention (preventive) detention laws enacted by the center or the States.

With respect to the object and purpose of the preventive detention this Court observed that:

The entire scheme of preventive detention is based on the bounden duty of the State to safeguard the
interests of the country and the welfare of the people from the canker of anti-national activities by antisocial
elements affecting the maintenance of public order or the economic welfare of the country. Placing the
interests of the nation above the individual liberty of the anti-social and dangerous elements who constitute a
grave menace to society by their unlawful acts, the preventive detention laws have been made for effectively
keeping out of circulation the detenus during a prescribed period by means of prevention (preventive)
detention. The objective underlying preventive detention-cannot be achieved or fulfilled if the detenu is granted
parole and brought out of detention.

28. In Poonam Lata Vs. M.L. Wadhawan and Others, this Court referred to its two earlier orders passed in
Harish Makhija v. State of U.P., (1987) 3 SCC 432 and Amritlal Channnmal Jain v. State of Gujarat in W.P. Nos.
1342-43, 1345-48, 1567/82 and 162/83. The order passed in Ilarish 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 1-7-1985 in Amritlal Channurnal Jain 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.

29. Rejecting the contention that the ratio laid down by t he larger Bench In Amritlal Channumal Jain 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 Harish Makhija v. State of U.P., (1987) 3 SCC 432 in Harish
Makhija 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 Vs.
Adam Kasam Bhaya, and State of Gujarat Vs. Mohd. Ismail Jumma and Others, . 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 Channumal Jain case is capable of another
construction as well, we do not find Shri Jethmalani's contention on this score as acceptable.

With respect to the two orders we may observe that no reasons were given in support of the view taken in
those cases. Therefore, it is not necessary to go into the controversy whether this Court laid down any law on
the point in Harish Makhija v. State of U.P., (1987) 3 SCC 432 or that the order passed in the case of Amritlal
Channumal Jain case was binding and ought to have been followed by this Court while deriding Poonam Lata
Vs. M.L. Wadhawan and Others, .

30. We may also state that in State of Gujarat Vs. Adam Kasam Bhaya, the only question that had arisen
consideration was whether the maximum period of detention starts running from the date of the order of
detention or the date of actual detention. How the maximum period is to be counted when it is interrupted by a
Courts invalid order or by an order of parole was not the question raised or decided In that case. The
observation that "If he has served a part of period of detention he will have to serve out the balance" was
made in that context only and it cannot be taken as laying down that if the prescribed period of detention is
thus interrupted then the detenu has to serve out the balance period of detention
31. It. was contended by the learned Attorney General that Section 10 and particularly the words may be
detained' have to be read in the context of Article 22(7)(b) of the Constitution and if they are so read, also
keeping in mind the object and purpose of the Act, then correctly interpreted they would mean 'may be actually
detained.' He submitted that Ail. 22(7)(b) is permissive, it being not obligatory on Parliament to prescribe the
maximum period of detention. Mr. Harish N. Salve, learned Solicitor General appearing for the State of Gujarat,
also submitted that, the Constitution thus contemplates longer period of detention in the sense that in
absence 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 prevention (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 arid the society
against anti-national and anti-social activities, the nature of action permitted is preventive and not punitive.
The distinction between prevention (preventive) detention and punitive detention has now been well
recognised. 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 is 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
imprisonment. On the other hand, preventive detention being an action of immediate necessity has to be
immediate arid 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.

32. The object of enacting the COFEPOSA Act is to provide for preventive detention in certain cases for the
purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities and
for matters connected therewith. The Act was enacted as violations of foreign exchange regulations and
smuggling activities are having an increasingly deleterious effect on the national economy and thereby a
serious adverse effect 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 n reference to the Advisory Board
within five weeks from the date of detention of the person under a detention order, in cases where Section 9
docs not apply. Considering the object of this provision it can be said that the period of five weeks will have to
be counted from the date of detention and it cannot get enlarged or extended because the detenu is
provisionally released either by the Court or by the Government during that period. Once an order of detention
is made and the person is detained pursuant thereto, then suspension is not contemplated and it can only be
revoked or modified. That the detention can be effective only if it is not interrupted as indicated by Section
12(6) which provides that notwithstanding anything contained in any other law, no person against whom a
detention order is in force shall be released whether on bail or otherwise. However, the power has been
conferred upon the Government to release the detenu for any specified period. In our opinion, all these
provisions clearly indicate 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 contemplate 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.

33. The reason given by this Court in Poonam Lata Vs. M.L. Wadhawan and Others, that the period during
which the detenu is on parole cannot be said to be a period during which he has been held in custody pursuant
to the order of his detention, because he was not in actual custody then, does not appear to be sound. The
learned Attorney General also contended that the said observation requires reconsideration as it is possible to
take the view that a person temporarily released u/s 12 is in constructive custody. The learned Solicitor
General also submitted that in spite of an order u/s 12 it can be said that the detenu is not a free person
during that period as his freedom and liberty would be subject to the conditions imposed by the Government.
A temporary release u/s 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. 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 parole or a wrong judgment or order of the Court. For the reasons already stated above, even this
contention cannot be accepted. 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 end.

34. I, therefore, hold that Harish Makhija v. State of U.P., (1987) 3 SCC 432 , Poonam Lata Vs. M.L. Wadhawan
and Others, and Pushpa Devi : 1987CriLJ1888 do not lay down the correct law on the point. I further hold that
if the period of detention is interrupted either by an order of provisional release made u/s 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.

35. In the result, I allow both the writ petitions and also dispose of the SLP in terms of the view that we have
taken in this judgment.