Vs.
EmailSections 10, 12 with Constitution – Article 22 – Period of deten-tion – Fixed period – Detenu released on parole or otherwise – Would period get automatically extended – Is detenu liable to serve out “remaining period of detention” after parole – Curtail-ment of personal liberty – Concept as against security of State – Parole – Connotation – If period of parole is to be counted or excluded from total period of detention – When detenu can be sent back to serve out remaining period. Held (per majority) that where parole is by administrative action, said period is to be counted towards total period of detention. In cases falling out of Section 12(6), the period cannot be counted towards detention. Ratio in Adam Kasam Bhaya’s case discussed. Held further that parole does not interrupt the period of detention and that period needs to be counted towards period of detention.
Ed: As per view of the Court, petitions were allowed. Since long period has lapsed, majority view was that detenus need not be sent back to “undergo remaining period” of detention.
(vide Para 1)
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. 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. 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, instruc-tions or terms for grant of parole, prescribe otherwise. (Paras 15, 15)
An order made under Section 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 under-go 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 at any time, for breach of condition, to be returned to custody. (Para 16)
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 excluded while computing the period of detention. 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 spe-cifically 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. (Para 16)
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 ques-tion 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 pre-scribed when the detenu was required to be detained and the date when the detenu is required to be detained pursuant to the ap-pellate 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. (Para 18)
(Per Nanavati, J. Partly concurring)
In Adam Kasam Bhaya case the only question that had arisen for 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 count-ed 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. (Para 30)
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. The object of such legislation is to protect the nation and the society against anti national and anti social activities. 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. (Paras 31, 32)
Once an order of detention is made and the person is de-tained 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 is 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. 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. If the word ‘detain’ is interpreted to mean actually detained for the maximum period, then it will partake the character of puni-tive detention and not preventive detention. (Para 32)
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. 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. (Para 33)
I further hold that if the period of detention is interrupt-ed either by an order of provisional release made under Section 12 or by an order of the Court, then the maximum period of deten-tion to that extent gets curtailed and neither the period of parole nor the period during which the detenu was released pursu-ant to the order of the court can be excluded while computing the maximum period of detention. (Para 34)
