CHANDRAKANT BADDIversusADDL. DIST. MAGISTRATE & POLICE COMMNR. & ORS.

                     "'[2008] 6 $.C.R. 163


                   CHANDRAKANT BADDI                            A
                        v.
 ADDL. DIST. MAGISTRATE & POLICE COMMNR. & ORS.
              (Criminal Appeal No. 756 of 2008)

                       APRIL 29, 2008
                                                                 B
   (TARUN CHATTERJEE & HARJIT SINGH BEDI, JJ.)

      Preventive Detention:
         Order of detention - Lapse of period of detention - Effect
  of - Detenu remaining outside custody due to order of Court C
  which was later set aside - Meanwhile period of detention
  lapsed - However, Court while setting aside earlier order,
  directing detenu to be sent back to jail for the remaining period
  - HELD: When an order of a Court quashing the detention is
  set aside, remittance of the detenu to jail to serve out the D
  balance period of detention does not automatically follow and
  it is open to the detaining authority to go into various factors
  delineated in the judgments* so as to find out whether it would
  be appropriate to send the detenu back to serve out the
. balance "period of detention - In this view of the matter, the E'
  detaining authority must be permitted to re-examine the matter
  and to take a decision thereon within a period of 3 months
  from the date of supply of the copy of the instant order -
  Kamataka Prevention of Dangerous Activities of Bottleggers
  Drug Offenders, Gamblers, Goondas, Immoral Traffic F
  Offenders and Slum Grabbers Act 1985 - s.3(2).
      *Sunil Fulchand Shah vs. Union of India & Ors. (2000) 3
 SCC 409; and State of TN. & Anr. Vs. A/agar (2006) 7 SCC
 540 - relied on.
                                                                 G
      TOevki vs. Govt of Tamil Nadu & Ors. (1990) 2 SCC
 456 - referred to.
      Commissioner of Police & Anr. vs. Gurbux Anandram
 Bhiryani (1988) Supp. sec 568 - stands overruled.
                           163                                   H
    164       SUPREME COURT REPORTS                 (2008] 7 S.C.R.

                                                                      (

A       CRIMINAL APPELLATE JURISDICTION : Criminal
    Appeal No. 756 of 2008.                                               Iii>

         From the Order dated 30.3.2007 of the High Court of
    Karnataka at Bangalore in R.P. No. 456/2006 in W.P. No. 156/
    2005.
B
                                 WITH
          Criminal Appeal No. 757 of 2008.

        K.K. Mani, C.K.R. Lenin Sekar and Mayur R. Shah for the
c   Appellant.
         Sanjay R. Hegde, A Rohan Singh and Vikrant Yadav for
    the Respondents.
          The following Order of the Court was delivered :
D         1. Leave granted.
         2. The appellant herein was detained for a period of one
  year under an order dated 91h December 2005 passed under
  Section 3 (2) of the Karnataka Prevention of Dangerous
E Activities of Bottleggers Drug Offenders, Gamblers, Goondas,
  Immoral Traffic Offenders and Slum Grabbers Act 1985. This
  order was challenged in the Karnataka High Court on 16th
  December 2005 by way of a writ of habeas corpus. By its order
  dated 1st September 2006, the Division Bench relying on
  Commissioner of Police & Anr vs. Gurbux Anandram Bhiryani
F (1988) Supp. SCC 568 quashed the order of detention and
  directed that the appellant be set at liberty. The State of
  Karnataka thereafter moved an application for review of the
  order dated 1st September 2006 on the plea that the aforesaid
  judgment had been over-ruled by a later judgment of this Court
G in T Devki vs. Govt of Tamil Nadu & Ors. (1990) 2 SCC 456.
  The Hon'ble Judges constituting the Bench observed that they
  had "spent sleepless" nights on account of an error committed
  by them in the light that the counsel had not brought the
  subsequent judgment of the Supreme Court to notice and that
H their judicial conscience had been pricked for having passed
 CHANDRAKANT BADDI v. ADDL. DIST MAGISTRATE                     165
         & POLICE COMMNR. & ORS.

an order relying on a judgment which had been over-ruled. The          A
Bench thus allowed the Review Petition on 30th March 2007
and re-called the order dated 1st September 2006. The Bench
also noticed that the period of detention had since expired on
3th December 2006 and accordingly observed:
     "In these circumstances, despite the opposition of Sri            B
     Javali, learned counsel and despite his contention that his
     client cannot be sent back to jail, in the light of a detention
     order having come to an end in the case on hand, we are
     not prepared to accept his submissions. A beneficiary of
     a defective order cannot be permitted to have the benefit         C
     and that benefit has to be recalled in the light of recalling
     benefit order. In these circumstances, we deem it proper
     to direct the police to take him to custody for the remaining
     period."
      3. It is against this order that the present appeals have        D
been filed. While issuing notice on 30th April 2007 the operation
of the impugned order had been stayed. In the meanwhile, the
learned counsel for the respondents has also filed a reply and
we have accordingly heard the matter on merits. The learned
counsel for the appellant has pointed out that as the detention        E
order was deemed to have come to an end on the expiry of one
year i.e. 3th December 2006, it would be inappropriate to send
the appellant back into custody and for this plea has placed
reliance on Sunil Fulchand Shah vs. Union of India & Ors.
(2000) 3 SCC 409. The learned counsel for the respondent has,          F
however, placed reliance on a subsequent judgment of this Court
in State of TN. & Anr Vs. A/agar (2006) 7 SCC 540 to contend
that the period during which the detenu appellant had remained
outside custody on account of a wrong order could not be taken
into account in computing the period of detention and that it          G
was still open to the detaining authority to examine as to what
was to be done in the circumstances of the case keeping in
view certain specified factors.
    4. We have heard the learned counsel for the parties and
gone through the record. In Sunil Fulchand Shah (supra) the            H
    166       SUPREME COURT REPORTS                      [2008) 7 S.C.R.

                                                                             (   '
A   Bench was dealing with the question posed as under:
          "First, 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
B         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
c         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."
          This question was answered in the following terms:
D
          "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
E         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.
F         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
G         in the order by which the detenu was 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."
       5. This judgment was followed in Alagar's case and in
H paragraph 9 it was observed that:
         CHANDRAKANT BADO! v. ADDL. DIST. MAGISTRATE                    167
                 & POLICE COMMNR. & ORS.
'   )

               "The residual question is whether it would be appropriate A
               to direct the respondent to surrender for serving remaining
               period of detention in view of passage of time. As was
               noticed in Sunil Fulchand Shah vs. Union of India and
               State of T.N. v. Kethiyan Perumal it is for the appropriate
               State to consider whether the impact of the acts, which led B
               to the order of detention still survives and whether it would
               be desirable to send back the detenu for serving remainder
               period of detention. Necessary order in this regard shall
               be passed within two months by the appellant State.
               Passage of time in all cases cannot be a ground not to c
               send the detenu to serve remainder of the period of
               detention. It all depends on the facts of the act and the
               continuance or otherwise of the effect of the objectionable
               acts. The State shall consider whether there still exists a
               proximate temporal nexus between the period of detention D
               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 present order." \
              6. A reading of the above quoted paragraphs wcl.uld I
                                                                      reveal
        that when an order of a Court quashing the detention is set aside,     E
        the remittance of the detenu to jail to serve out the balance period
        of detention does not automatically follow and it is open to the
        detaining authority to go into the various factors delin'eated in
        the judgments aforequoted so as to find out as to whether it
        would be appropriate to send the detenu back to serve out the          F
        balance period of detention. In this view of the matter, we are of
        the opinion that the detaining authority must be permitted to re-
        examine the matter and to take a decision thereon within a
        period of 3 months from the date of the supply of the copy of this
        order. We further direct that during this period the interim order     G
        in favour of the appellant given by us on 30th April 2007 will
        continue to operate.
               7. The appeals are allowed in the above terms.
        R.P.                                            Appeals allowed.
                                                                               H