SUNIL FULCHAND SHAH versus UNION OF INDIA & OTHERS

Citation: [1989] 2 S.C.R. 867 · Decided: 01-05-1989 · Supreme Court of India · Bench: R.S. PATHAK · Disposal: Directions issued
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Judgment (excerpt)

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SUNIL FULCHAND SHAH 
v. 
UNION OF INDIA & OTHERS 
MAY 1, 1989 
[R.S. PATHAK, CJ, L.M. SHARMA AND 
M.N. VENKATACHALIAH, JJ.] 
A 
B 
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, 
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: 
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] 
In the case of grant of parole, one possible view can be that the 
E 
F 
G. 
, · + 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 
SUPREME COURT REPORTS 
(1989] 2 S.C.R. 
-- -- . 
. . 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 
F 
G 
ORIGINAL/CRIMINAL APPELLATE JURISDICTION: Writ 
Petition (Criminal) No. 248 of 1988. 
(Under Article 32. of the Constitution of India). 
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. 
· 
• •• 
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. 
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SUNIL FULCHAND SHAH v. U.0.1. [PATHAK, CJ.] 
869 
.,l 
Kuldip Singh, Additional Solicitor General C.V.S. Rao and 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 
~~. 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 exp
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