Holding

Preventive detention under the Act runs from the date specified in the order and the period is not automatically extended by parole or by interruption due to an erroneous judicial order; the question is to be reconsidered by a five‑Judge Bench.

Summary

The petitioner Sunil Fulchand Shah challenged his preventive detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, before the Supreme Court under Articles 32 and 136 of the Constitution. The central issue was whether the period of detention specified in the order is a fixed term that ends on the expiry date, or whether it can be automatically extended by periods of parole or by interruption caused by an erroneous High Court order releasing the detainee. The Court observed that preventive detention differs from punitive detention and ordinarily runs from the date mentioned in the order, with the detaining authority exercising subjective judgment. It noted that one view is that parole should be counted within the total detention period and that a legislative solution similar to sections of the UK Administration of Justice Act may be required for cases of erroneous release. Given the importance of the issue for both public safety and individual liberty, the Court ordered that the matter be referred to a five‑Judge Bench for a full reconsideration.

Issues considered

Whether the period of preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 is a fixed term running from the date specified in the detention order.
Whether parole granted to a detainee should be counted within the total period of detention or extend it.
Whether a detainee released on an erroneous High Court order can be re‑detained after the original period of detention has expired.

Legislation cited

Administration of Justice Act, 1960 (UK)s. 15(4), s. 5(1)
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3

Subjects

preventive detentionparoledetention periodCFEPSA 1974constitutional lawArticle 32Article 136libertyerroneous judicial order

Judgment

SUNIL FULCHAND SHAH
A
v.
UNION OF INDIA & OTHERS

MAY 1, 1989

[R.S. PATHAK, CJ, L.M. SHARMA AND B
M.N. VENKATACHALIAH, JJ.]

ril Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974: Section 3-Preventive detention-Period of

- detention-Whether fixed-Whether automatically/correspondingly
extended by period of parole or by release of detenu by erroneous
decisions of High Court-Matter referred to a Bench of Five Judges. C

The petitioner filed a writ petition and a special leave petition
challenging the detention order passed under the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974. It
was contended on behalf of the respondents that the period of detention D
intended by the detention order was not a tixed one but could be cor-
respondingly extended if the detenu absconded before he could be
apprehended and detained or the period of detention was interrupted
by an erroneous judgment of a High Court and the detenu was set free.

Referring the cases to a larger Bench, this Court, E

HELD: By the Court: As the matter is of great public impor-
tance, these cases are referred to a Bench of tive Judges of this
Court. [870C]

Per Pathak, CJ: F

Preventive detention invariably, runs from the date specified in
the detention order, and the period of detention is determined by the
detaining authority, applying its subjective judgment to material before
it. [869G-H]
G.
In the case of grant of parole, one possible view can be that the
, ·+ period of parole should be counted within the total period of detention
and not outside it. As regards the problem raised hy release of a detenu
pursuant to an erroneous decision of the High Court, and the subsequent
reversal of the decision by the Supreme Cour~, the remedy probably lies
in the enactment of legislation analogous to s. 5(1) ands. 15(4) of the H
867
868 (1989] 2 S.C.R.
SUPREME COURT REPORTS
-- -- .

..J\ Administration of Justice Act, 1960 in the United Kingdom. [870A·Bl · )..._

As the question is of great public importance affecting, orrthe one
hand, the need for affective 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, and since most
a cases of preventive detention are hound to he affected, the~e cases are
referred to a five Judge Bench for reconsideration of the law on the ;...__.
point. [870B-C] ~

State of Gujarat v. Adam Kasam Bhaya, (1982] l SCR 740; State
of Gujarat v. Ismail Juma & Ors., (1982] l SCR 1014; Smt. Poonam
Lala v. M.L. Wadhawan and Others, AIR 1987 SC 1383 and Push-
C padevi M. iatia v. M.L. Wadhavan, AIR 1987 SC 1748; dissented from.

Per Sharma, J (Concurring):

In view of the great public importance involved, these cases may
D he heard by a five Judge Bench. [870E]

State of Gujarat v. Adam Kasam Bhaya, (1982] l SCR 740; State
of Gujarat v. Ismail Juma & Ors., (1982] l SCR 1014; Smt. Poonam
Lata v. M.L. Wadhawan and Others, AIR 1987 SC 1383 and Push- _.+-
padevi M. Jatia v. M.L. Wadhavan, AIR 1987 SC 1748; affirmed.
E
ORIGINAL/CRIMINAL APPELLATE JURISDICTION: Writ
Petition (Criminal) No. 248 of 1988.

(Under Article 32. of the Constitution of India).

F WITII

Special Leave Petition (Cr!.) No. 1492 of 1988.
• ••
From the Judgment and Order dated 29.4.88 of the Gujarat High
Court in Special Criminal ApplicationNo. 886 of 1986. ·
G
U.R. Lalit, M.G. Karmali, J.B. Patel and K.M.M. Khan for the +
petitioner in W.P. Cr!. No. 248/88 and S.L.P:(Crl.) No. 1492/88.

T.U. Mehta, Mrs. Hemantika Wahi and M.N. Shroff for the
State of Gujarat in W.P. Cr!. No. 248/88 and S.L.P. (Cr!.) No. 1492/
H 88.
SUNIL FULCHAND SHAH v. U.0.1. [PATHAK, CJ.] 869

.,l Kuldip Singh, Additional Solicitor General C.V.S. Rao and A.
A
Subba Rao for the Respondents in W.P. Cr!. No. 248/88 and S.L.P.
(Cr!.) No. 1492/88.
The following Orders of the Court were delivered:
PATHAK, CJ. This writ petition under Article 32 of the
Constitution and the Special Leave Petition under Article 136 of the B
~~. Constitution arises out of proceedings for preventive detention taken
fnder 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 c
t·
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 D
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. E
Those cases ·are State of Gujarat v. Adam Kasam Bhaya, [1982] 1
S.C.R. 740; State of Gujarat v. Ismail Juma.& Ors., [1982] 1 S.C.R.
1014; Smt. Poonam Lata v. M.L. Wadhawan and others, A,I.R. 1987
SC 1383 and Pushpadevi M. Jatia v. M.L. Wadhavan, A.LR. 1987 SC
}· 1748. We find some difficulty in accepting the view taken by the
learned Judges of this Court who decided those cases. lt ~ems to us F
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 puni·
tive detention. Preventive detention invariably runs from the d¥e
+. specified in the detention order. In the case of punitive detention, no G
date is ordinarily specified from which the detention will commence,
and all that is mentioned is the period of detention. In case of preven-
tive detention the detaining authority applies it 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 H
870 SUPREME COURT REPORTS [1989] 2 S.C.R.

A engaging in mischief. It seems to us prima facie that one possible view .>...
can be tllat 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 deci-
sion by this Court, the remedy probably lies in the enactment of Jegis-
B lation analogous to s. 5(1) ands. 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 o/J

c
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 reconsideration of the Jaw on the
-
point. -+
ORDER
D Although I agree with the view expressed i11-the State of Gujarat
v. Adam Kasam Bhaya, (1982) 1 S.C.R. 740 and the other cases
mentioned in the order of the learned Chief Justice, I agree that in
view of the great public importance of the point involved, these cases
may be heard by a Bench of five Hon'ble Judges. ~·
E N.P.V.

•