Andhra HC (Pre-Telangana)
Murutoty Michael Vijayakumar vs State Of Andhra Pradesh And Ors. on 20 August, 1986
JUDGMENT K. Bhaskaran, C.J.
1. The petitioner, Murutoty Michael Vijayakumar, is a detenu under the National Security Act (hereinafter referred to as 'the Act') pursuant to a detention order dt. 18-8-85 passed under Section 3(2) of the Act by respondent 2, the Collector and District Magistrate, Cuddapah. The order of detention was confirmed by respondent 1, the Government of Andhra Pradesh, in G.O.Rt. No. 4110, dt. 8-10-1985. Even since 19-8-1985, the petitioner has been in actual detention except for three short periods when he was temporarily released under Section 15 of the Act. This Writ Petition was filed on 18-8-1986 for the issue of a writ of Habeas Corpus directing the respondents to release the detenu forthwith as the maximum period of detention of twelve months from the date of detention as envisaged under S. 13 of the Act expired on 18-8-1986.
2. The stand taken by the respondents represented by the learned Addl. Advocate General is that it is only on 5-9-1981 (1986 ?) that the period of detention would expire and, before that date, the detenu shall not be entitled to have his release.
3. The real question that falls for decision in the writ petition is, whether the short periods during which the detenu was temporarily released from detention have to be reckoned for the purpose of the period of detention, or, whether the maximum period of twelve months from the date of detention envisaged in S. 13 of the Act would or would not include the periods during which the detenu had been temporarily released under Section 15(1) of the Act, in other words, whether the period covered by the temporary release is to be counted as part of the period of detention.
4. The submission by Sri. Vedantha Rao, learned Counsel appearing for the petitioner, is that in terms of S. 13 read with S. 15 of the Act, there is no power for the Government to extend the detention beyond the period of twelve months from the date of detention; in other words, after the expiry of a period of twelve months reckoned from the date of detention, the period covered by the temporary release orders would not be added to that period. He has argued that the liberty of a citizen had to be jealously guarded by the Court as enjoined under Art. 21 of the Constitution and, in the absence of clear mandate of the law, there would be no justification at all for continuing the detention beyond the maximum period allowed by the relevant provision of the statute. In fact, his submission is that any further detention would be manifestly illegal.
5. On behalf of the respondents, it was argued by the learned Additional Advocate General that the period of temporary release is akin to the period of parole granted to a person convicted and sentenced to imprisonment and, inasmuch as paroles are periods which are not to be reckoned towards the sentence undergone, there is absolutely no justification for making a differentiation so far as the case of the detenu under the National Security Act is concerned. In this connection, the learned Additional Advocate General drew our attention to R. 18, A.P. Suspension of Sentence on Parole Rules, 1981, framed in exercise of the powers conferred by sub-section (5) of S. 432, Cr.P.C. 1973, which reads as follows :
"The period spent on parole shall not be counted as part of sentence."
He also drew our attention to sub-rule (13) of R. 974, A.P. Prison Rules, which reads as follows :
"The period spent on parole shall not be counted as part of sentence."
6. Having given our anxious thought to the scheme of the Penal Code and the Cr.P.C. on the one hand and the preventive detention laws on the other, we are of the opinion that what is laid down by the Rule with respect to the parole vis-a-vis sentence would not be applicable to the detention under the provisions of the preventive detention laws in the absence of provisions express or inferrable by necessary implication, to that effect. Now, we would refer to the provisions of Sections 13 and 15 of the Act. Section 13 reads.
"13. Maximum period of detention - The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under Section 12 shall be twelve months from the date of detention."
Section 15 reads, "15. Temporary release of persons detained -
(1) The appropriate Government may, at any time, direct that any person detained in pursuance of a detention order may be released for any specified period either without conditions or upon such conditions specified in the direction as that person accepts, and may, at any time, cancel his release.
(2) In directing the release of any person under sub-section (1), the appropriate Government may require him to enter into a bond with or without sureties for the due observance of the conditions specified in the direction.
(3) Any person released under sub-section (1) shall surrender himself at the time and place, and to the authority, specified in the order directing his release or cancelling his release, as the case may be.
(4) If any person fails without sufficient cause to surrender himself in the manner specified in sub-section (3), he shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.
(5) If any person released under sub-section (1) fails to fulfil any of the conditions imposed upon him under the said sub-section or in the bond entered into by him, the bond shall be declared to be forfeited and any person bound thereby shall be liable to pay the penalty thereof."
The object of detention in preventive detention laws is to ensure that the detenu is prevented from continuing his activities which are prejudicial to the maintenance of public order; in other words, the object in fixing a certain time limit up to which he has to be detained in the detention order is that up to that point of time, he would not be in a position to carry on his activities which are prejudicial to the maintenance of public order. On the other hand, the purpose underlying the sentence under the criminal law is to punish the offender; and the principle underlying the Rule, which stated that the period spent on parole would not be reckoned as part of the sentence is to ensure that the full period of sentence is undergone by the person convicted, without taking advantage of the period during which he did not actually suffer imprisonment on account of the parole granted to him. The learned Addl. Advocate General's argument appears to overlook this vital distinction between the detention under the preventive law on the one hand and sentence of imprisonment under the criminal law on the other.
7. The Addl. Advocate General also brought to our notice the decision of the Supreme Court in State of Gujarat v. Adamkasam, . That was a case in which the detenu, who was detained under Section 10. Conservation of Foreign Exchange and Prevention Smuggling Activities Act, was set at liberty on account of the High Court having set aside the detention order and, later on, by the time the appeal was heard by the Supreme Court, a period of more than two years had elapsed; in other words, detention was on 7th May, 1979 whereas the appeal was heard by the Supreme Court on 18th September 1981. Disagreeing with the argument of the learned Counsel, the Supreme Court in para 4 at page 2006, observed as follows :
"We have not been told by Mr. Rama whether the first part or the second part of S. 10 applies to the facts of the case. He has made the submission on the assumption that the second part of S. 10 applies and the period of two years prescribed by the second part already expired. In our opinion the submission has no force. 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 be accepted, two unintended results follows : (1) if a person against whom an order of detention is made under Section 3 of the Act, he 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 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 period of detention he will have to serve out the balance. The preliminary objection is overruled.
Great stress was laid by the learned Addl. Advocate General on the sentence which we have underlined, stating that the emphasis is that wherever and for whatever reason it might be, if the period of detention has been served only in part, the balance has to be served out by the detenu. In this context, we will do well to remember that what came up for consideration before the Supreme Court was, whether the date of detention starts from the date of the order of detention or from the date of actual detention of the detenu. The Supreme Court categorically stated that it started from the date of actual detention, not from the date on which the order of detention was passed. The other incidental observations found in the judgment have to be read and understood in the background of these facts, particularly in the light of the specific issue that came up for consideration. No doubt, even obiter dicta found in the decisions of the Supreme Court are to be respected, not to be ignored; however, the observations could not be taken out of context or in isolation to set up a plea that they lay down any invariable rules or principles of law. The position of an absconding detenu or whose detention has been broken by an illegal order of the court could not be equated with that of a detenu, who, for compelling reasons, was temporarily released for short periods in accordance with the provisions of the very Act under which the detention is ordered, bearing in mind also that there is nothing in the statute empowering the detaining authority to extend the detention period beyond the maximum period of 12 months from the date of detention under Section 13, adding to it such duration, if any, covered by temporary release ordered under Section 15 of the Act.
8. When there is no provision in the Act, which specifically or by necessary implication lays down that the period of temporary release shall not be counted as part of the period of detention, there is no justification for reading into the section such a clause. In fact, the other things be equal, the Court should be inclined to interpret the provision in favour of the detenu, rather than in favour of the detaining authority.
9. For the foregoing reason, inasmuch as a period of twelve months from the date of detention has already expired and, by virtue of the provisions contained in S. 13 of the Act, there could be no detention beyond this period of twelve months, we hereby direct the respondents to release the petitioner - detenu forthwith. The writ petition is allowed in the above terms.
Petition allowed.