Harish Makhija vs State of U.P. and Others

This Judgment has been overruled by : Sunil Fulchand Shah Vs. Union of India and Others, AIR 2000 SC 1023 : (2000) CriLJ 1444 : (2000) 1 CTC 694 : (2000) 68 ECC 209 : (2000) 2 JT 230 : (2000) 1 SCALE 660 : (2000) 3 SCC 409 : (2000) 1 SCR 945 : (2000) AIRSCW 582 : (2000) 4 Supreme 682

SYED M.FAZAL ALI, J.-It is obvious that the period of parole cannot be counted towards period of detention. The petitioner should surrender and serve out remaining period of 141 days'' detention. Criminal Miscellaneous Petition is disposed of accordingly. APPENDIX Application for Directions Filed by Advocate for the Respondents To Hon''ble Mr Y. V. Chandrachud, the chief justice of India and his companion Judges of the Supreme court of India. Most Respectfully Sheweth

THAT the detenu Arjun Dass was detained on 13/01/1983 under S. 3(1) of the COFEPOSA Act, in pursuance of the order dated June 28. 19X2 passed by the State government.

That the detenu Arjun Dass had challenged his detention before the Hon''ble High court of Allahabad by way of writ petition. The said writ petition was dismissed by the Hon''ble High court by the order/ judgment dated 10/02/1983.

That thereafter the writ petition was filed by the petitioner Harish Makhija. on behalf of the detenu before this Hon''ble court. This Hon''ble court by its order dated 13/09/1983, held that in the facts and circumstances of the case we direct that the detenu will be released on parole until further orders, but during the period of parole, the detenu shall not leave Lucknow without obtaining the permission of the detaining authority. Liberty to the government to apply for the cancellation of parole if the detaining authority is satisfied that the detenu has misused the parole. With these observations the writ petition is disposed of.

That in pursuance of the aforesaid order of this Hon''ble court, the detenu Arjun Dass, was released on parole by the State government on 23/09/1983. It is pertinent to mention that the State government had granted a parole to the detenu for a period of one month from 28/03/1983.

That the detention of the detenu was ordered and confirmed for a period of one year by the government. The said period of one year has expired on 13/01/1984. But the detenu has not served out the detention in view of the period of parole made available to him earlier by the State government and then by the Hon''ble Court. The period of parole from 28/03/198 3/04/1983 comes to 30 days and from September 23, 19S 3/01/1984 comes to 111 days. Therefore the detenu has to undergo the detention for 141 days more in order to complete one year''s detention as per the State government Orders.

That this Hon''ble court in State of Gujarat v. Adam Kasam reported in AIR 1981 SC 2005. held that in S. 10, both in the first and the second part of the section, it has been expressly mentioned that the detention will be for a period of one year or two years as the case may be. from the date of detention, and not from the date of the order of detention. If the submission of the learned counsel is accepted two unintended results follow:

If a person against whom an order of detention is made under S. 3 of the Act. he can successfully abscond till the expiry of the period and altogether avoid detention and

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 over two years as the case may be. as mentioned in S. 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 detention, he will have to serve out the balance.

That it is respectfully submitted that in view of the authoritarian pronouncement by this Hon''ble court, the detenu has to serve out the balance of detention if he has served a part of the detention. The detenue Arjun Dass has served detention of 224 days out 365 days. Therefore, he will have to serve 141 days more to complete the period of detention.

IT is therefore prayed that this Hon''ble court may kindly issue appropriate directions in the matter and direct the detenu Arjun Dass to surrender before the detaining authority in order to serve out the remaining part of his detention.

AND for this Act of kindness the respondent is duty bound shall ever pray.